Initial White House Rebuttal to Starr Report
From Clinton lawyer David Kendall's response to independent counsel Kenneth Starr's report to the House. See table of contents.
VI. "ABUSES OF POWER"
From the very beginning, the Lewinsky investigation has been about potential impeachment a direct attack by the OIC on the constitutional status of the President. It is in that context that the OIC's allegations of abuse of power must be judged.
Any charge the OIC might make that the President has abused the powers of his office through the assertion of privileges privileges that were asserted at the initiation and recommendation of the Counsel's Office, not by the President himself is utterly baseless. Indeed, those charges are more a reflection of the OIC's unfettered abuse of his authority and his wholesale abandonment of any prosecutorial judgment in his campaign to prevent the President from consulting with his most senior advisors in confidence. No prosecutor, not even during Watergate, ever has contemplated the sort of sweeping intrusion into the President's ability to obtain advice that has been undertaken by the OIC. At bottom, the Independent Counsel believes that, merely because he demands confidential information, the President may not defend himself against impeachment without raising a charge that he is thereby abusing his power.
Before moving to these issues, one other point is worthy of note. It has been suggested in media reports that one of the grounds for impeachment advanced by the OIC is that the President abused his power by denying to his staff, in the days immediately following disclosure of the Lewinsky investigation, that he had engaged in any improper conduct when he knew that they might be called as witnesses before the grand jury and knew that they were making public statements in his defense. If this allegation were not so serious, such a suggestion would be ludicrous.
Implicit in the allegation is the notion that any official, in any branch of the government, who makes a statement about his own conduct, or indeed any other matter, that is not absolutely true is liable for misusing his office for so long as he fails to admit wrongdoing, for the official's staff will inevitable repeat his explanation in any number of forums. It would follow, therefore, according to what appears to be the OIC's reasoning, that no official could mount a defense to impeachment, or to ethics charges, or to a criminal investigation while remaining in office, for anything other than an admission of guilt will be treated as an abuse of his official powers.
1. The President's Decision to Litigate Privilege Issues Cannot Be Compared to the Abuses of Power Alleged during Watergate
The Independent Counsel apparently attempts to evoke images of Watergate by charging that the President has abused the powers of his office. This allegation is simply meritless. In the Federalist Papers, Alexander Hamilton described abuse of power as the "corrupt use of the office for personal gain or some other improper purpose." Former President Nixon's use of the Central Intelligence Agency (CIA) to thwart a major criminal investigation by the Federal Bureau of Investigation (FBI) of a crime in which he was involved, to take but one example, fits squarely within that definition. President Clinton's lawful assertion of privileges in a court of law and the Counsel's Office conduct of its official duties plainly does not.
There is no comparison between the claimed abuses of power by President Nixon and the public and lawful assertion of privileges during the OIC investigation. Indeed, comparing this White House with President Nixon's diminishes the historical significance of the unprecedented claims of abuse of power by the Nixon administration and attempts to criminalize the proper exercise of presidential prerogatives. The specious nature of the OIC's allegations reveal the OIC's true motive: to create an offense where none exists.
In July 1974, the House Judiciary Committee lodged serious and significant abuse of power charges against President Nixon, alleging that President Nixon, among other things:
Engaged in an elaborate cover-up scheme that included using his secret intelligence operation to pay both for illegal activities and subsequent blackmail money for the cover-up;
In contrast, the OIC apparently has made such charges of abuse against President Clinton, however erroneously, for purportedly encouraging the Secret Service to assert privilege claims over their testimony and invoking attorney-client and executive privileges. President Clinton's privilege claims have been open and lawful, and were reviewed and in significant measure validated by the courts. Thus, the Nixon investigation and precedent stand in sharp contrast to the OIC's investigation and baseless charges in this matter.
2. The United States Secret Service's Decision to Pursue AProtective Privilege Was the Proper Exercise of Its Own Authority And In No Way an Abuse of Power By the President
The assertion of a protective function privilege by the Secret Service cannot possibly serve as a basis for the OIC's allegations of abuse of power. As a factual matter, the President never asked, directed, or participated in any decision regarding the protective function privilege. Moreover, no one at the White House asked, directed, participated or had any role in such decisions. The Treasury and Justice Departments independently decided to pursue a privilege for the Secret Service to ensure the protection of this and future presidents.
Second, ignoring significant security concerns expressed by the Secret Service, the Independent Counsel sought testimony from agents about non-criminal events they may have witnessed as well as non-criminal conversations they may have overheard in the course of protecting the President. For the first time in the history of the Independent Counsel statute, the Independent Counsel sought to use the protective service as a source of intelligence for admittedly non-criminal activities of a protectee. In the wake of this unprecedented demand, it was and continues to be the reasoned judgment of career professionals in the Secret Service that the absence of a protective privilege would severely impair agents' ability to fulfill their mission to protect this and future Presidents (as well as other protectees). The Secret Service's position was supported by former presidents and by former agents assigned to protect presidents in both Republican as well as Democratic administrations.
Thus, the Justice and Treasury Departments' assertion of a protective privilege advanced valid concerns about the Secret Service's ability to perform its function. The OIC's suggestion that the assertion of this privilege constituted an abuse of power not only insults the integrity of career law enforcement officials, but that of congressional policy makers too. Indeed, because of the Independent Counsel's unorthodox overreaching, Senator Hatch vowed to seek legislation to enact the type of limited privilege asserted by the Secret Service in response to the Independent Counsel's sweeping actions. Congressional Press Releases, Senator Orrin Hatch, July 17, 1998.
3. The President's Assertions of Executive and Attorney/Client Privilege were Valid and Necessary
Any charge by the OIC that the President's assertion of privileges constitutes an abuse of power is equally baseless. The White House advanced claims of privilege only sparingly and as a last resort to protect the core constitutional and institutional interests of this and future presidencies. In pursuing his attack on the institution of the Presidency, the OIC took the extreme position that executive privilege was inapplicable and that the governmental attorney-client privilege did not exist in the face of grand jury subpoena. The OIC now seeks to penalize the President for disagreeing with its interpretations of the law, despite the fact that the courts (and the Department of Justice) both also disagreed with the OIC.
A.The President Followed the Advice of White House Counsel Regarding the Assertion of Official Privileges
A necessary component of the OIC's abuse of power allegation is that the President initiated the White House's claims of privilege both executive and attorney-client with intent to impede the OIC's investigation. The record completely refutes this premise.
The privilege issue initially arose when the OIC served on Bruce Lindsey, Assistant to the President and Deputy Counsel, a subpoena seeking his testimony before the grand jury. Declaration of Charles F.C. Ruff ("Ruff Dec.") 31. Prior to Mr. Lindsey's appearance, the White House Counsel met with the OIC to discuss privilege issues and to ask the OIC to describe with particularity possible areas of inquiry to determine whether they would encompass privileged information. Id. 32. The OIC declined to discuss this issue, and later stated that it intended to question Mr. Lindsey on areas implicating a wide array of privileges because it believed that executive and attorney-client privileges were inapplicable to information relating to the Lewinsky investigation. Id. 32-34. The White House offered, in good faith, to provide the OIC with any factual testimony regarding the Lewinsky investigation. Id. 45-50. The OIC rejected this offer. Id. 51.
Instead, the OIC suddenly filed motions to compel the testimony of Mr. Lindsey and other senior staff. Id. After careful deliberations, the White House Counsel notified the President of the privilege issue, explained the failed accommodation effort, and recommended that he invoke privilege. As he did in every instance, the President accepted the White House Counsel's recommendation and authorized the Counsel to make the claim of privilege. Id. 56. Thus, the President's decision to claim privilege was never the result of his own initiative, but of his Counsel's advice.
To put the OIC's apparent abuse of power charges in context, it is important to recognize that the OIC took the extraordinary position that executive privilege was inapplicable in the face of a grand jury subpoena and that it therefore was entitled to immediate and full disclosure of all strategic and political communication among the President's most senior advisors. This position was squarely at odds with the law of the Supreme Court, and of course, the D.C. Circuit. Executive privilege is constitutionally-based and covers communications relating to the President's official duties and the effective functioning of the executive branch. It ensures that the President receives frank and candid advice and recommendations, which ultimately fosters more informed and effective decision-making.
Here, the President asserted executive privilege over communications that relate to matters that affect the performance of his official duties. In re Grand Jury Proceedings, 1998 U.S. Dist. Lexis 7736, § 7 (D.D.C. 1998); Ruff Dec. 16-30. Indeed, some of these communications related to the President's decision whether to invoke privilege over other communications. Id. 26-28.
Rather than acknowledge the presumptively privileged nature of the information, the OIC maintained that the privilege was inapplicable and that it did not have to demonstrate any need for the information. Chief Judge Johnson rejected the OIC's position holding that the communications were presumptively privileged. In re Grand Jury Proceedings, 1998 U.S. Dist. Lexis at § 3-10. The Court then required the OIC to make a showing that its need for the information was sufficient to overcome the privilege. Id. at * 13-21. Although the Court concluded that the OIC had met its burden, the Court at no time even suggested that the President's assertion of executive privilege was groundless, improper, or made in bad faith. In those circumstances, it cannot seriously be argued that assertion of the privilege was an abuse of power.
C. The President's Assertion of the Attorney-Client Privilege was Solidly Grounded in the Law of this Circuit
For centuries, the law has recognized the attorney-client privilege as absolute in protecting the confidentiality of communications between lawyers and their clients. The D.C. Circuit has also recognized that the attorney-client privilege protects confidential communications between government lawyers and officials. E.g. Mead Data Control, Inc. v. Dep't of the Air Force, 566 F.2d 242 (D.C. Cir. 1977). Courts recognize that a government official, like any other citizen, must be able to provide information to and seek advice from government lawyers without fear of public disclosure. Ultimately, the privilege serves an important governmental function by fostering well-advised and fully-informed decision-making. The possibility that those communications may be disclosed will forfeit the benefits the privilege was intended to protect.
Despite the law in the D.C. Circuit recognizing the attorney-client privilege in the governmental context, the Independent Counsel pushed to breach the bonds of the governmental attorney-client privilege. Unlike his predecessors, who have respected the professional obligation of government attorneys to provide confidential legal advice on official matters, the Independent Counsel has insisted that government attorneys and clients do not have the right to discuss legal issues in confidence. In this context, the White House's assertion of the attorney-client privilege was not only appropriate, but it was an ethical and institutional obligation.
Prior to the D.C. Circuit litigation, the OIC was well aware that the White House fundamentally disagreed with the OIC regarding the applicability and scope of the governmental attorney-client privilege. In the Eighth Circuit, the OIC had attempted to obtain a White House lawyer's notes that reflected confidential communications. In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997). At the time of that litigation, which the White House resisted and the OIC won, there was no authority rejecting the existence of a governmental attorney-client privilege.
Two years later, the OIC, in the Lewinsky investigation, sought to compel the disclosure of confidential communications between the President and his official lawyers in which legal advice was either being sought by or provided to the President regarding official matters. In view of the law of the D.C. Circuit, which recognized an absolute governmental attorney-client privilege, the White House Counsel recommended, and the President asserted, the privilege.
A recent Supreme Court ruling that rejected the OIC's sweeping attack on the attorney-client privilege provided additional support for the President's position. In Swidler & Berlin v. United States, ___U.S.___ (1998); 1998 U.S. Lexis 4214 (1998), the OIC argued that the personal attorney-client privilege should automatically give way to the needs of a criminal investigation. The Court rejected the OIC's position and stated that "there is no case authority for the proposition that the privilege applies differently in criminal and civil cases," id. at § 7, supporting the principle that the privilege remains absolute in a grand jury context. Accordingly, the President's position on the applicability of the privilege in this context had a substantial basis in the decisions of both this Circuit and the Supreme Court.
Undaunted, the OIC argued that, based upon the non-binding Eighth Circuit opinion, the governmental attorney-client privilege is inapplicable in a grand jury context. 112 F.3d 910 (8th Cir. 1997). From an institutional standpoint, the OIC's position stripped the President of any ability to obtain confidential advice from government lawyers about official matters in the event that the OIC made a referral to Congress for possible impeachment hearings. In an impeachment context, the President is entitled to rely on Counsel's Office lawyers to provide critical legal guidance. Without the ability to receive such confidential advice, he is left without any legal guidance regarding the conduct of his official duties.
The District Court rejected the OIC's position and held that the President had a valid, though qualified, governmental attorney-client privilege. In re Grand Jury Proceedings, 1998 U.S. Dist. Lexis at *21-52. Performing a need analysis similar to executive privilege, the Court balanced the President's interests against those of the grand jury and ultimately determined that the grand jury was entitled to the information. Once again, the District Court did not suggest that the privilege claim was spurious or made in bad faith.
On appeal, a divided D.C. Circuit Court of Appeals ruled that the President had an attorney-client privilege with White House Counsel in some contexts, but not this one. In re: Bruce R. Lindsey, 1998 U.S. App. Lexis 17066, § 7-43 (D.C. Cir. 1998). Judge David Tatel, whose dissenting opinion in the Court of Appeals' decision in Swidler & Berlin was adopted by the Supreme Court, dissented here as well. Consistent with his analysis in Swidler & Berlin, Judge Tatel found that the Court's opinion did not account for "the unique nature of the Presidency, its unique need for confidential legal advice, or the possible consequences of abrogating the attorney-client privilege for a President's ability to obtain such advice." Id. at *54. Judge Tatel's recognition of the validity of the absolute nature of the privilege and the President's need to assert this and belies the notion that the assertion was in any way an abuse of power.
The OIC's apparent argument that the assertions of privilege were for purposes of delay lacks any evidentiary support and, more significantly, overlooks the OIC's own dilatory conduct. After Mr. Lindsey was subpoenaed and before he was scheduled to testify, the Office of the President attempted to avoid litigating these issues by reaching an accommodation that would provide the OIC with access to the information to which it was entitled while maintaining the legitimate confidentiality interests of the President. Id. 31-32. The OIC rejected those efforts and instead filed its motion to compel. Id. 51. The OIC has continued to reject any attempt by the White House to compromise, choosing instead to litigate these issues. The Office of the President has sought to avoid any delay by agreeing to expedited briefing schedules involving privilege litigation, and the courts, appreciating the time-sensitivity of the issues, have ruled swiftly on these matters.
In any event, any delay that might have been caused by the White House had no substantive impact on the OIC's investigation. Privilege claims have been advanced as to only a narrow portion of the testimony of three witnesses. The OIC originally filed motions to compel the testimony of two senior staff members and one Counsel's Office lawyer. The litigation only temporarily postponed the testimony of the two senior staffers; in March, they both appeared before the grand and testified fully. The privilege assertions ultimately involved the testimony of only three Counsel's Office lawyers. Each of these individuals has testified at length regarding any facts they may have possessed about whether the President had a relationship with Ms. Lewinsky. The questions as to which they asserted privilege were narrow in scope and irrelevant to the matters being investigated.
Finally, substantial delay in the investigation has been self-inflicted. The OIC has wandered aimlessly down more alleys and byways than any federal prosecutor would appropriately do. The OIC has called current and former White House staffers before the grand jury, and interviewed many others. The OIC has called presidential advisers before the grand jury four, five and six times; sometimes for only one- or two-hour sessions. Some witnesses appeared to testify only to find themselves waiting for hours and then being told to return on another day. The OIC has also insisted on exploring such irrelevant subjects as White House contacts with the press, and has required testimony from attorneys whose primary function was to deal with the OIC. Such actions are highly unusual, if not unprecedented.
4. White House Lawyers Played an Appropriate Role in the Investigation
As a threshold matter, when there is an official nexus between the duties of the President and an ongoing investigation, which certainly exists here, it is the duty of government attorneys to represent their official client. The specter of impeachment loomed from the day the Lewinsky story broke in the press. Ruff Dec. 21. Members of the Congress asserted that the investigation, which drew explosive media, public and congressional attention, burdened the President's ability to perform his constitutional and statutory duties. Accordingly, the White House Counsel's Office lawyers, among others, were responsible for providing the President and White House officials with informed, candid advice on the issues raised by the investigation that affected the President's official duties. Id. 16-30.
When it suited the OIC's interests, the OIC recognized the appropriateness of, and relied on, the White House Counsel's efforts. From the beginning of this investigation, the OIC sought and received the cooperation of the White House lawyers in setting up interviews and grand jury appearances of current and former White House employees. The OIC, however, refused to allow the White House lawyers to represent even the most junior, uninvolved witnesses. Thus, all White House officials, from the most senior to the most junior, were required to obtain private counsel. White House lawyers also provided relevant documents to witnesses' attorneys to ensure complete and accurate testimony, provided privilege instructions and guidance, and followed-up afterwards to discuss an individual's interview or grand jury appearance and any outstanding issues. All of the Counsel's Office activities were well-known to the OIC, and no objection was ever voiced.
Lastly, it was not uncommon for the White House to be faced with inaccurate and spurious stories that seemed to be coming from the OIC or "sources close to the OIC" shortly after a witness testified or was interviewed by the prosecution. Indeed, Judge Johnson examined media reports, and concluded that they contained grand jury material and that there was evidence that the OIC as the source. In re Grand Jury Proceedings, Misc. No. 98-55 (D.D.C. June 19, 1998), Mem. Op. at 6. Accordingly, Judge Johnson held that this evidence established a prima facie case that the OIC had violated Rule 6(e) and ordered the OIC to appear to show cause why it should not be held in contempt for Rule 6(e) violations. These leaks created a deluge of press inquiries to the White House; not surprisingly, White House Counsel lawyers were required to gather information and advise senior staff concerning the appropriate response to these inquiries.
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