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Excerpts From Starr's Address

By The Associated Press
Friday, May 1, 1998

Excerpts from Whitewater Independent Counsel Kenneth Starr's address Friday to the San Antonio Bar Association:

As the Supreme Court said in United States vs. Nixon, a decision that I'll say more about shortly, the public has a right to every man's -- we would, of course, say man and woman's -- evidence, except for those persons protected by a constitutional, statutory or common-law privilege. A witness is free to talk about what happens before the grand jury; indeed, to hold a news conference on the courthouse steps, and to repeat his or her testimony before the television cameras, as some choose to do.

But jurors and prosecutors cannot disclose matters occurring before the grand jury. So, I will not say anything about the grand jury's investigation. That obligation of confidentiality is a serious and solemn one on our part, imposed by law to protect the reputation and the dignity of individuals summoned to appear.


Executive privilege, although no one used that terminology then, first rose around that same time -- at the founding of the republic, as part of the give and take between the legislative branch and the executive branch.

In 1792, the House of Representatives sought documents related to military matters. President Washington convened his Cabinet to decide: How should we respond to Congress's request?

Cabinet officers agreed that the House could appropriately conduct investigations and that it could call for papers from the president of the United States. But whether in fact, to accede to such request would be up to the president.

In the words of then-Cabinet member Thomas Jefferson, secretary of state, ``The executive ought to communicate such papers as the public good would permit, and ought to refuse those the disclosure of which would injure the public.''


Now, for some time, as we know from history, President Jefferson had thought that Chief Justice Marshall was getting a bit highhanded. At one point, Jefferson told the United States attorney who was prosecuting Aaron Burr, ``Stop citing Marbury vs. Madison as authority.'' Has a contemporary ring to it, doesn't it? The words of Mr. Jefferson.

Remember when he dined alone -- ``I have long wished for a proper occasion to have the gratuitous opinion'' -- this is Marbury vs. Madison he's talking about -- ``the gratuitous opinion in that case brought before the public and denounced as not law.''

Even Mr. Jefferson the genius could be wrong.

Nonetheless, the president sent the documents to the prosecutor. He wanted, President Jefferson later wrote, his words, ``to avoid conflicts of authority between the high branches of government which would discredit (the government) it equally at home and abroad.''

Mr. Jefferson believed that presidents are free to hold back documents from Congress, but when it came to the courts, he was reluctant to provoke a confrontation.


In the end, Chief Justice Marshall's series of rulings established three important principles. First, a president is subject to a subpoena in the proper circumstances. He is not above the law. Second, the decision to withhold subpoenaed information or documents must be made by the courts, and not unilaterally by the president. And third, only the president can assert executive privilege.


President Eisenhower, interestingly enough, set a record by invoking executive privilege against congressional committees more than 40 times during his eight-year tenure.

But no 20th century president tested executive privilege in court until President Nixon, in what came to be known as Watergate. Then, as with the Burr prosecution, executive privilege reached the courts several times.


Following Chief Justice Marshall's admonition, the president asserted the privilege himself by letter to Chief Judge John Sirica.

For the White House to comply with the subpoena, the president wrote in his letter, would be inconsistent with the public interest and with the constitutional position of the presidency. And so he was respectfully declining to do so.

In legal briefs, the president argued to ignore subpoenas under executive privilege. He argued in fact that his assertion of executive privilege ended the matter. For a court even to review it would impermissibly trample on executive authority.

Judge Sirica saw it differently. He wrote, ``In all candor, the court fails to perceive any reason for suspending the power of courts to get evidence and to rule on questions of privilege in criminal matters simply because it is the president of the United States who holds the evidence.''

Even so, Judge Sirica concluded that executive privilege does exist, and it does protect the privacy of presidential deliberations.


The (Supreme Court -- in United States vs. Nixon) ruled just as Judge Silica had, that invocations of executive privilege are reviewable by the courts. While the courts must defer substantially to the president, presidential respect, the task of demarcating the boundaries of the privilege, any privilege, is a matter for the judiciary.

Recalling the words of Chief Justice Marshall: ``It is emphatically the province of the judicial department to say what the law is.'' These are the words of the court:

``Privileges are designed to protect weighty and legitimate competing interests. These interests are recognized in law by privileges against forced disclosure established in the Constitution by statute or at common law. Whatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.''

Truth.

As for executive privilege in particular, the court acknowledged that presidents need confidential advice. But, the justices said, the courts need evidence.


President Nixon did not choose the Jacksonian path of defiance. By obeying the Supreme Court of the United States and turning over the tapes, he acknowledged and he reinforced the primacy of what we honor here today: the rule of law in our constitutional system.

© Copyright 1998 The Associated Press

© Copyright 1998 The Washington Post Company

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