February 19, 1998
Two former White House counsels discuss the current confrontation between the independent counsel and the Clinton administration regarding the use of executive privilege.
MARGARET WARNER: A confrontation looms between the White House and independent counsel Kenneth Starr over executive privilege in the Monica Lewinsky investigation. At issue, whether Starr can compel Deputy White House counsel and close Clinton adviser Bruce Lindsey to disclose to the grand jury discussions he and the President have had on the Lewinsky matter. The White House has threatened to invoke executive privilege to block such questions unless a satisfactory arrangement can be negotiated with Starr. For perspective on all this we're joined by two former White House counsels: C. Boyden Gray held the job in the Bush administration. Jack Quinn served in the first Clinton term. Why would the White House even be thinking about invoking executive privilege in this situation?
JACK QUINN, Former Clinton White House Counsel: The White House and all White Houses will always think about invoking executive privilege whenever anyone tries to intrude on that area of communication between a president and his senior advisers. The reason that's so important is that sitting presidents and for all future presidents there's a vital public interest in making sure that they can have candid, honest, forthright advice from their advisers. If people have to worry that what they tell a president will later be disclosed, they might not give the president their best advice. And that is not in the public interest.
MARGARET WARNER: Do you think executive privilege applies in this situation potentially?
C. BOYDEN GRAY, Former Bush White House Counsel: I don't think so. Of course, we don't know exactly what they're being asked, what Bruce Lindsey is being asked, but the Nixon tapes case, which is the leading case, suggests that it's really rooted, the executive privilege is, in national security, military, and diplomatic matters. So I don't think--
MARGARET WARNER: Explain that a little bit.
C. BOYDEN GRAY: Well, historically, the privilege was designed to protect the office of the presidency in its dealings in matters of diplomacy so foreign governments could have confidentiality, military so military secrets can be maintained, national security so that national security intelligence matters can be held confident. It is true, as Jack says, that a president should be able to get advice, but advice on these matters, not advice about potential criminal activity. So if a grand jury were to subpoena--if Starr were to subpoena, seek to compel testimony, I believe in a litigated court case the White House would lose. But it is true that this White House and every White House would use the potential of this privilege to control the questioning and narrow the questioning to keep the scope as clean as possible. And that's a legitimate tactic, and that's probably what they're doing here.
JACK QUINN: Let me take issue with Boyden. The executive privilege is not that crimped. And in--
MARGARET WARNER: As you start, though, explain. This is not in the Constitution. So where does it even come from? Then go ahead.
JACK QUINN: Well, it's really rooted in the separation of powers, principles, and the important purposes of allowing a President to carry out his constitutional functions. And, indeed, that's precisely the point I was just going to make, that really executive privilege protects those communications that are necessary to enable a President to carry out his duties. A significantly more recent decision than the Nixon case is called "In Re: Sealed Matter," though it is no longer sealed, and it is on the public record, it involves the Mike Espy investigation.
MARGARET WARNER: Former Secretary of Agriculture in Clinton's first term.
JACK QUINN: Yes. This is a very instructive case because it has nothing to do with military secrets or national defense. There the prosecutor sought notes that people made when they interviewed different people about perspective cabinet nominees. The White House took the position that the President's power to appoint people to positions of great public trust, cabinet positions, was a vital duty that the President has to carry out, and that the President has to be free to get again candid, forthright, honest advice from people about the people whom he's thinking of appointing to office. The court agreed and said that those notes did not have to be turned over. But that is precisely the kind of situation where you can see an incredibly strong public interest in making sure that the president can get honest advice from people. If you thought that by telling Boyden what you thought about me--if a president was considering me for a job--that that information might be out in the public in a year, you might not be as forthcoming as you would be if you were assured of confidentiality. And the public interest demands confidentiality. That's what executive privilege is all about. That's why it's so important. It is, in fact, about encouraging honesty in these communications at the senior-most levels of government. It's not about hiding things; it's about making sure that these communications are honest and candid and forthright.
MARGARET WARNER: Help us understand what was going on today. We, of course, don't know what was happening inside that courthouse, but Bruce Lindsey arrived for a second day of testimony with a lot of lawyers with him, and they went before a judge first outside of the grand jury hearing. They apparently talked for about an hour, and he went on to the grand jury room, while the White House issued a statement saying the negotiations were continuing. What do you think went on inside that room with the judge? What was there to negotiate about? What would the arguments have been like?
C. BOYDEN GRAY: Well, they probably discussed with the judge how they would deal with individual questions of privilege as they might come up. I doubt if they argued and decided that particular general issue at that particular time. My guess is--not knowing--of course not having been there--my guess is what's happening is that the--that Starr doesn't want to have to press the claim because it would take him weeks, maybe months, to get the final answer. And my guess is by the same token, the White House doesn't want to assert the privilege because it looks like they're trying to hide something, as legitimate as the privilege may be, and as long and old as it is, they don't want to assert it. So there's this jockeying back and forth in the negotiation process over what can they ask Bruce Lindsey, and that's all part of the process of an investigation. And I think it's legitimate, and they may end up never asserting it, and Starr will never have to probably, therefore, contest it.
MARGARET WARNER: But, I mean, would the judge today--would she have been in a position to decide this?
C. BOYDEN GRAY: I don't think so because if the President didn't assert it, which he didn't, then there's nothing for her to decide. I think she was setting up the framework, the procedure by which the issues would be raised, and I gather that my predecessor, Jack's predecessor, Charles Ruff, was down there probably going over what would happen in the event that they had to contest a particular question. It never did materialize. So I guess Starr was jockeying back and forth. And that's all part of the process, all legitimate, and it does vindicate the privilege, even if I would again insist. I mean, I don't think it would apply in this because this was not a discussion, I suspect, about cabinet level appointments.
MARGARET WARNER: Does that sound plausible to you, and do you agree that both sides are probably trying to avoid having this come to a head?
JACK QUINN: I disagree there too, I'm afraid. I think, in fact, the likelihood is that the independent counsel here wants a confrontation. This is part of a pattern of the independent counsel pushing the envelope, insisting on intruding into the relationship between the President and the Secret Service, insisting that one's secrets can't be safe even with one's mother. You see here an effort, I believe, to create an atmosphere in which the independent counsel can assert that the White House is hiding things, is covering up, is not being forthcoming. I think that that is probably a very calculated, strategic move on their part, and for that reason I'm not optimistic about where this is going to go. Now, let me also comment on Boyden's point about whether this is private or public. Mr. Starr can't have it both ways. The Constitution and the independent counsel statute and Mr. Starr all indicate that if there is evidence here of wrongdoing on the part of the president, it will be referred to the House of Representatives. Mr. Starr, in other words, is not prosecuting the private single case of Paula Jones against Clinton, or any other private civil matter.
MARGARET WARNER: Or even whether there was a relationship between him and Monica Lewinsky?
JACK QUINN: Correct. He is looking into matters that go very much to the question whether the President will be able to carry out his constitutionally prescribed functions.
MARGARET WARNER: You mean because the practical effect could be--
JACK QUINN: Hearings in the House of Representatives or so on.
MARGARET WARNER: --an impeachment proceeding or something.
JACK QUINN: Now, deliberations about how to handle this matter go right to the heart of the President's ability day in, day out to carry out his duties. This is not a private matter. This is very much a public matter.
MARGARET WARNER: Well, what about that point?
C. BOYDEN GRAY: Well, we don't know again what they're trying to ask Bruce Lindsey. If they're trying to ask him about how are you going to deal with the House of Representatives in the event there's an impeachment inquiry, well, that might be protected. But we don't know that that's what they're asking about. And the same issue came up, I suspect, in the Nixon tapes case. There was no way Cox was going to indict President Nixon. He was going to refer the matter to the House of Representatives, where, in fact, it ended up. But still the materials had to be released.
MARGARET WARNER: All right. If they can't come to an agreement, then who trips the confrontation? I mean, what happens?
C. BOYDEN GRAY: Well, it's a cat and mouse game, I suspect. But it probably will be tripped by the--by the independent counsel, who would say, all right, I want you to answer that question, and Bruce Lindsey there with us, he comes out of the grand jury room, sees his lawyers, and says, should I answer the question, and the lawyers say, no. And at that point Starr has to decide will I move to compel an answer.
JACK QUINN: The directive, I believe, would have to come from the President. It is only the President who can assert this privilege; it's his and his alone. It's not Bruce Lindsey's; it's not Charles Ruff's or anyone else's.
MARGARET WARNER: And if it came to a confrontation, then it goes to another court or to the Supreme Court? What happens?
JACK QUINN: Well, no, I agree with Boyden. What happened is that Mr. Lindsey--presume again--this is all hypothetical--would be under some instruction not to answer the question because of an assertion, invocation of privilege by the President, and presumably at that point the independent counsel would take the matter to the presiding judge.
MARGARET WARNER: All right. Thank you--
C. BOYDEN GRAY: Then from there it would go to the court of appeals.
MARGARET WARNER: Thank you both very much.
JACK QUINN: You bet.