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Ruff's Argument for Executive Privilege
Thursday, May 28, 1998

The following is an excerpt from a declaration by White House counsel Charles F.C.Ruff dealing with the effect of the Paula Jones sexual harassment lawsuit and the independent counsel investigation on President Clinton and the White House staff. It was unsealed on May 27. For more information, see the Post story.

. . . In May 1997, the Supreme Court held in Clinton v. Jones that the Constitution does not require a stay of private litigation involving the president until after his term. Thus, the Jones litigation was permitted to proceed during the president's term, with the court making particular note that the potential burdens that this litigation may place on the president need to be taken into account by the trial court. This decision requires the president to balance two competing demands on his time: (1) his need to defend the Jones lawsuit and (2) the absolute requirement that he devote his full time and attention to performing his duties as president. . . .

...The president, as the chief executive of our nation, has extraordinary demands placed on his time. His schedule cannot accommodate the many demands of his office, independent of his personal and family responsibilities. In most instances, the many competing obligations facing the president require him to rely on his advisers to meet with certain people, attend meetings, gather information and advise him on particular matters.

Thus, the progress of the Jones litigation concurrent with the president's second term has placed additional demands on the president's schedule that, under the law, he must fulfill despite the current demands of his office. Consequently, the president must look to his advisers to assist him in determining how he can fulfill the requirements of the lawsuit while not abandoning his duty to the American people.

The lawsuit has also spawned issues and the need for decisions (e.g., discovery, the deposition of the president, and the possibility of a resolution of the litigation prior to trial) that affect the presidency and the president's duties to perform his abilities effectively. The president's advisers, who know the scope and weight of matters before the president at any given time, are best situated to advise the president as to how various aspects of the Jones litigation may affect the presidency or official matters. Accordingly, presidential advisers need to know about and discuss those litigation-related issues or matters that may affect the office so that they can give the president informed advice as to how he should proceed.

The media's interest in the Jones litigation has generated inquiries in hundreds of official presidential press conferences and briefings by the president, his press secretary, and other White House staff, whether held here or in other countries. Indeed, the volume of Jones-related inquiries that the White House receives sometimes eclipses the inquiries generated by official White House policy matters. Therefore, presidential advisers need the ability to have informed, candid, and frank discussions about the Jones litigation to prepare the president for these inquiries. . . .

On Jan. 16, 1998, at the request of the attorney general, the special division conferred jurisdiction on the office of independent counsel Kenneth Starr to investigate whether "Monica Lewinsky or any other individual" suborned perjury or committed other federal crimes. The allegations surrounding the OIC's investigation involve the president during his tenure, the White House and many White House employees. . . .

The Lewinsky investigation involves allegations regarding the president's conduct toward a federal government employee during his tenure in office. This matter is inextricably intertwined with the daily presidential agenda, and thus has a substantial impact on the president's ability to discharge his obligations. Accordingly, in the course of executing his duties, there have been discussions among advisers and the president involving the Lewinsky investigation, and these discussions have been held in confidence and treated as subject to privilege. . . .

Under Article II of the Constitution, Congress possesses the power to initiate proceedings against a president that can ultimately result in his removal from office. Thus, even the mere speculation about such proceedings raises serious issues that a president and his advisers must address. . . .

Only days after the special division expanded the scope of the OIC's investigation, members of the House Judiciary Committee renewed their public discussions about the possibility of initiating proceedings against the president in light of the allegations arising from the Lewinsky investigation. Weeks later, the press continued to report that many people "would like to see [the president] impeached or forced to resign." Congressman Robert Barr [R-Ga.] recently went so far as to state that "the Republican leadership is beginning to lay the groundwork . . . [for] impeachment proceedings. . . . " Thus, the Lewinsky investigation not only relates to and affects the presidency -- it also threatens it.

Statements by members of Congress and related reports have generated numerous inquiries, some directed at the president, about the possibility of impeachment proceedings. Consequently, presidential advisers must gather information and formulate advice for the president about the Lewinsky investigation to address the myriad of issues and inquiries that the investigation raises in this context. In addition, the counsel's office must prepare to defend against any such proceeding. . . .

The president's State of the Union address occurred days after the press reported the expansion of the OIC's jurisdiction and the allegations surrounding Ms. Lewinsky. The White House received numerous inquiries as to whether the president would address these allegations in his State of the Union address. The president's advisers obviously were required to gather information, consider available options, and advise the president about how to handle this and related matters.

The president's ability to work with Congress to enact legislation is likewise affected by the Lewinsky investigation. Certain legislators have been described as "throwing up their hands at the prospect of doing any serious business," thereby significantly affecting the president's domestic agenda. Indeed, Senate Majority Leader Trent Lott [R-Miss.] recently remarked that the Lewinsky investigation "is beginning to have an impact on the presidency, on the president and on his ability to deal with many very important issues for the future of our country -- from Social Security to what's going on in Iraq to now what's going on in Kosovo." Therefore, in discussing with the president his ability to achieve the administration's domestic policy objectives, advisers must take into account the impact of issues arising out of the Lewinsky investigation on his efforts and advise him accordingly.

Based upon information from others, I understand that the Lewinsky investigation also affected the president's ability to address foreign policy matters. For example, during the recent crisis with Iraq, certain people speculated that the Lewinsky investigation might harm the president's ability to "influence" the public. . . . Therefore, the president's advisers necessarily discussed the Lewinsky investigation and advised the president so that he could effectively execute his constitutional duties regarding foreign policy matters. . . .

© Copyright 1998 The Washington Post Company

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