Executive Privilege Rears Its Head

In an echo of the Watergate affair, President Clinton and his legal advisors are considering invoking the doctrine of executive privilege to shield two of his close aides from testifying fully before a grand jury.

In subpoenaing presidential advisors John D. Podesta and Bruce R. Lindsey, independent counsel Kenneth W. Starr would like insight into the discussions of the innermost presidential circle planning the White House response to the allegations that Clinton had an affair with Monica S. Lewinsky and later urged her to lie about it.

If it chooses to resist, the White House would be trying to keep its secrets despite some precarious legal rulings on the issue.

The talk of executive privilege evokes memories of the legal claim that President Nixon invoked famously, and ultimately unsuccessfully, to block the release of the Watergate tapes that drove him from office.

In 1974, the Supreme Court unanimously rejected Nixon’s bid to block the special prosecutor’s subpoena for the tapes, ruling that “the search for the truth” in a criminal case outweighs the “president’s privilege of confidentiality.”

Nixon had claimed he had an “absolute privilege” of keeping secret his White House conversations.

Disagreeing, the court said executive privilege is what lawyers call a “qualified privilege.” Sometimes it is honored, and sometimes not, depending on the circumstances.

If the president and his aides were discussing matters of national security, military operations or diplomatic secrets, those conversations would almost always be shielded from disclosure, the court said. However, if the president tried to shield all conversations with his aides simply because they are “presidential deliberations,” that claim would not necessarily carry much weight.

On the other side of the scale, the court ruled, is the need for information. The court said criminal cases get the highest priority for release of requested information--higher, for instance, than a congressional committee seeking information from an executive branch agency.

“The allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the function of the courts,” wrote Chief Justice Warren E. Burger, a Nixon appointee.

Though the president’s privilege to have confidential conversations in the White House “is entitled to great respect” most of the time, the chief justice said, “it is essential that all relevant and admissible evidence be produced” in a criminal case.

Starr, a onetime law clerk to Burger, recited the key elements of the 1974 decision in his comments about executive privilege on Thursday.

“We want the truth [regarding] very serious allegations,” Starr said in Little Rock, Ark. While the president’s claim of confidentiality is “a recognized constitutional privilege,” its use in the current case would serve “to prevent the grand jury from getting specific information,” he said.

Podesta appeared before the grand jury Thursday and, in comments after his appearance, said he answered all questions asked of him. He is scheduled for another grand jury appearance today. Lindsey is expected to be called soon.

Starr’s prosecutors are reportedly interested in learning whether Lindsey, one of the president’s closest confidants, encouraged Lewinsky to deny under oath a sexual relationship with Clinton in exchange for help in getting a job.

While Clinton’s aides are presumably willing to tell the grand jury about the general operation of the White House or whether they had observed Lewinsky in the Oval Office, they may be reluctant to discuss their conversations with Clinton about the issue.

In public comments, administration officials have been reluctant to speak directly about invoking executive privilege.

Clinton was asked about the issue Thursday during a brief appearance with British Prime Minister Tony Blair. “That’s a hypothetical question,” he replied. “Should it arise, I will await a recommendation from the White House counsel about the institutional responsibilities of the presidency.”

Legal experts on presidential powers say they doubt the White House can succeed with a broad claim that seeks to shield officials from testifying before a grand jury.

“I think it is problematic, if not impossible, to invoke the privilege in this kind of situation,” said former Reagan administration attorney Douglas W. Kmiec, who is teaching this year at Pepperdine Law School.

However, a more limited claim that seeks to block questioning in certain areas could force Starr to show why the information is vital to his probe.

“It could take many months to resolve it if they choose to litigate,” said one lawyer following the issue.

Undoubtedly, the president’s lawyers would prefer to rely on a more solid legal doctrine to shield their internal deliberations, such as the attorney-client privilege. Typically, the conversations between a lawyer and a client are absolutely shielded from disclosure to the prosecutors.

Last year, however, the White House suffered a surprising defeat in an earlier clash with Starr. Suspecting that First Lady Hillary Rodham Clinton may have deceived prosecutors by hiding her billing records from her days as a lawyer in Arkansas, Starr’s staff subpoenaed the notes taken by White House lawyers who met with her before and after she appeared for questioning by the grand jury.

The White House decided to fight the subpoena and invoked the attorney-client privilege.

Siding with Starr, the U.S. court of appeals in St. Louis ruled that “government lawyers” do not have an attorney’s privilege to shield themselves or their notes from a federal criminal probe. The White House appealed to the Supreme Court, but in June the justices dismissed the appeal without a single dissent.

Since both Lindsey and Podesta are on the public payroll, neither of them could presumably refuse to answer questions on the grounds of an attorney-client privilege.

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Use of Executive Privilege

The use of executive privilege is a recognized constitutional right to withhold sensitive documents and information from Congress or the courts. It dates to the nation’s beginnings.

GEORGE WASHINGTON: Cited principle that would later become known as “executive privilege,” in dispute with House.

DWIGHT D. EISENHOWER: Expanded use of executive privilege--beyond just presidential papers in denying appearance of attorney general at McCarthy hearings.

RICHARD NIXON: First recognition of concept of executive privilege by Supreme Court in subpoena dispute over Watergate probe.

RONALD REAGAN: Claimed executive privilege three times: in EPA investigation, William Rehnquist inquiry and to block attempt to get diaries in Iran-Contra probe.

BILL CLINTON: Invokes executive privilege in 1995 for the first time to defy Senate subpoenas in Whitewater case; considers invoking doctrine in Monica Lewinsky case.

Researched by JULIA FRANCO / Los Angeles Times