Starr after his speech in San Antonio on Friday. (AP Photo) Related Links Excerpts from Starr's Speech Privilege Claim Covers Talks With First Lady (Washington Post, March 24) Watergate Flashbacks: Court Orders Nixon to Yield Tapes (Washington Post, July 25, 1974) U.S. v. Nixon Supreme Court Decision (FindLaw Internet Legal Services)

By Peter Baker
Washington Post Staff Writer
Saturday, May 2, 1998; Page A08

Declaring that "absolutely no one is above the law," independent counsel Kenneth W. Starr yesterday implicitly compared his legal battle with President Clinton over executive privilege to the Watergate fight President Richard M. Nixon lost shortly before resigning in 1974.

Although a president has an understandable interest in protecting the confidentiality of his White House, Starr said such a privilege "must give way" and evidence "must be turned over" to prosecutors if it is relevant to a criminal investigation.

The independent counsel did not directly address his dispute with Clinton over testimony in the Monica S. Lewinsky investigation, but instead used a bar association address to trace the history of executive privilege and, by inference, voice publicly for the first time the line of argument he has used in sealed court proceedings as he seeks to question senior Clinton aides.

He left little doubt that he had the current issue in mind as he cited approvingly the words of Watergate prosecutor Leon Jaworski. "Watergate had taught the nation two valuable lessons, lessons that are especially appropriate for us to recall on Law Day," Starr said in a San Antonio speech carried live on television. "First, Mr. Jaworski said, our Constitution works. And second, he wrote, no one, absolutely no one, is above the law."

His remarks came as a subtle but unmistakable rejoinder to Clinton, who on Thursday scorned Starr's investigation as the work of political enemies out to bring him down because they could not win in the electoral arena. While couched in indirect language, the collective comments over the past two days amounted to an unusual coded conversation between the president and the prosecutor.

They also exposed for public consumption a debate over the limits of White House secrecy that, until now, has played itself out in secret. Clinton has never even said he has invoked executive privilege to protect top advisers, although during this week's news conference he effectively acknowledged doing so.

But even some of Clinton's own advisers acknowledge that the secrecy shrouding the fight has worked to his political advantage, minimizing news coverage and therefore dampening the damaging comparisons to Nixon they had feared. For that reason, Starr's speech yesterday rankled. "He's trying to bring in the ghosts of Watergate and Richard Nixon," complained one Clinton aide.

The tension between the two sides escalated this week as Starr indicted for a second time Clinton's old friend and former Justice Department official, Webster L. Hubbell, for tax evasion. Lawyers close to the case believe Starr may seek yet more charges against Hubbell and former Clinton business partner Susan McDougal before a Little Rock grand jury goes out of business next week.

The executive privilege dispute arose when Starr tried to question White House deputy counsel Bruce R. Lindsey and communications adviser Sidney Blumenthal about certain internal discussions concerning the Lewinsky investigation. Chief U.S. District Judge Norma Holloway Johnson has yet to rule on the matter or release edited transcripts of the arguments already provided to her by both sides.

While he reviewed the history of executive privilege back to George Washington, Starr devoted much of his half-hour "professorial" talk to the Nixon case, noting that it was 24 years ago yesterday that the president's lawyers cited executive privilege to avoid turning over secret tapes of 64 White House conversations. Nixon ultimately lost when the Supreme Court unanimously found that the privilege was outweighed by the prosecutors' "need for evidence." The "smoking gun" information on the tapes prompted Nixon to resign two weeks later.

"Where the president asserts merely a generalized interest in confidentiality, the privilege must give way to what the court called 'the fair administration of criminal justice,' " Starr said. "If the evidence is relevant to a criminal investigation or prosecution, it must be turned over."

In response, the White House welcomed Starr's recognition that executive privilege serves a useful function. "Our view is consistent with that of the courts and Mr. Starr, who acknowledges the need for confidential communications and the need to balance that with the legitimate interests of the judicial branch," said White House spokesman James Kennedy.

But administration officials also said Starr misinterpreted the law by ignoring an appeals court ruling last year in the corruption case against former agriculture secretary Mike Espy. Under that decision, Clinton advisers said, prosecutors must do more than simply show that evidence is relevant to override executive privilege; they also must demonstrate that it is important to their case and unavailable through other means.

Starr's office later fired back, saying the White House interpretation was "false and misleading" because it presumes the appeals case supersedes the Supreme Court in U.S. v. Nixon. Even so, prosecutors added, the Espy decision limited privilege to "official government matters," apparently implying that the Lewinsky discussions would not qualify.

Either way, Starr has a point in comparing the claims by Nixon and Clinton, both of whom have given "executive privilege a bad name," said American University professor Mark J. Rozell, who wrote a book on the subject.

In both cases, "you had a president asserting a high-minded reason for executive privilege -- protecting the presidency -- while at the same time hiding behind that doctrine to protect himself, personally and politically," Rozell said. "In both cases, it constituted a poor use of executive privilege."