May 6, 1998
A debate over executive privilege with two former White House counsels: Lanny Davis, who served in the Clinton White House, and C. Boyden Gray, who served in both the Reagan and Bush administrations.
PHIL PONCE: Now we take up the debate over executive privilege with two former White House counsels: Lanny Davis, who served in the Clinton White House, and C. Boyden Gray, who served in both the Reagan and Bush administrations. Gentlemen, welcome. Mr. Davis, what do you think of the Judge's ruling?
LANNY DAVIS, Former Clinton White House Counsel: If the ruling is as it's been reported--and of course it's still under seal--it does suggest that it is extremely difficult to prevail on an executive privilege argument if you're not dealing in national security and foreign policy matters. That being said, you should remember what happened during the last executive privilege battle which the White House lost.
Those were over notes taken by White House special counsel Jane Shurburn when she interviewed the First Lady. Now, a lot of people thought that the battle there was because the contents of those notes were perhaps harmful to the First Lady's cause, and the White House was battling as a subterfuge to protect anyone from finding out what was in those notes. In fact, that was an issue that was about the principle of executive privilege and the need to protect candor between the president and the First Lady and lawyers advising them.
When the notes were actually turned over to Mr. Starr, as the White House had said all along, there was nothing there. So I think we now have to look to this issue again as the White House and Mr. Charles Roth, a former Watergate prosecutor, taking a position about the importance of executive privilege for all presidents, not just this one, even at the political inevitable cost of comparisons to Watergate, even though there is nothing in my view that will be harmful to the president if Mr. Lindsey, Mr. Blumenthal, or anyone else is forced to actually answer these questions.
PHIL PONCE: Mr. Gray, your reaction.
C. BOYDEN GRAY, Former Bush White House Counsel: Well, apart from the political issue of what it looks like they're hiding something and apart from the question of whether there really is anything that's being hidden, I think they have already risked and will continue to risk if they appeal the value of privilege. I think the question of attorney-client privilege has been totally lost now when it perhaps might not have needed to be. In the case that Lanny just referred to with Jane Shurburn now, if they take this thing up, they run the risk of diminishing executive privilege.
Executive privilege is better used as a threat really in bargaining with a prosecutor or with the congress than it is once it's written down because the minute it's written down, it is almost automatically diminished. So I hope that they won't appeal this for the sake of a future president.
PHIL PONCE: And by the way, by way of background, where does executive privilege come from? It's not mentioned in the Constitution specifically.
C. BOYDEN GRAY: It comes from the doctrine of the separation of powers, which, of course, is the central building block of the Constitution, and it's been recognized, I think, since the founding of our country. It was first spelled out in detail in the Nixon tapes case, but I don't think anyone argues on either side of this dispute that it's about a privilege and should be protected and should be used properly. My only problem with this is--and the problem that others have is that it should not be abused, because then it's diminished.
PHIL PONCE: Are the--Mr. Gray, to follow up, and then I'd like to get Mr. Davis on this, what is your reaction to the comparisons that some people are making to Watergate?
C. BOYDEN GRAY: Well, there is an implication that they are hiding something, and if they appeal, the implication will be strengthened. On the other hand, in fairness to the White House, I think it should be pointed out that we don't have a lot of documents here or tapes or whatever. It's testimony of two individuals. It's highly unlikely that the same kind of damage could be at stake here, but we don't know, and only time will tell.
PHIL PONCE: Watergate comparisons, Mr. Davis?
LANNY DAVIS: It just doesn't wash--not by even a slight margin. The fact is that executive privilege is asserted in both instances, and that's all that's the same. In the case of President Nixon we had abuse of presidential power, and we had executive privilege asserted over evidence that did constitute an obstruction of justice.
As we know, the tapes were what the executive privilege in the Nixon case was about. Now, here let's just remember what we have. We have an alleged false statement in a civil case involving evidence that the judge ruled to be inadmissible in a case that was thrown out of court. We have questions being asked that will not shed light on anything approximating felonious conduct proven in Watergate. The misuse of presidential power proven in Watergate, the analogy is political partisan one used by I think people with partisan purposes, not with people with understanding of history, or a concern about facts.
PHIL PONCE: Is that how you'd characterize it?
C. BOYDEN GRAY: I wouldn't. I wouldn't go quite as far as Lanny's gone to make the distinction, but the fact of the matter--because the fact of the matter is the president can end this entire inquiry, this entire business, simply by making very, very public what he knows. And he knows most of the facts himself. It's not like Iran-Contra, where you had dozens of agencies and foreign countries. He knows it all, and he can lay it out, and put all of this to rest.
PHIL PONCE: Mr. Davis, why doesn't he do that?
LANNY DAVIS: Well, first of all, I agree with Boyden that he could do that and it would have perhaps less political consequence. The fact that he is taking the advice from Mr. Ruff because constitutional principles are at issue I think is to the credit of the White House. As to why he doesn't speak up now in the Monica Lewinsky investigation as we previously discussed, first, he's been under oath, and that deposition has been virtually published in full where he's answered numerous questions about the Monica Lewinsky matter.
Secondly, he's declared on the two substantive questions before this investigation he has categorically denied a sexual relationship, and he's categorically denied telling people to say something that's untrue. So he has spoken out. He has answered questions. Whether he should do anything more voluntarily, as I've said, with Mr. Starr in this type of investigation, with his kind of approach to the investigation, the president isn't above the law, he also isn't below the law. He should wait for the investigation to terminate, and then at that point he can consider telling more of the story than he has already told.
PHIL PONCE: And just to clarify your feeling as to what executive privilege may or may not cover, if a presidential aide were to see a criminal act take place, is there any way executive privilege could shield him or her?
LANNY DAVIS: No, I don't believe so. And it's very interesting that even on the Secret Service assertion, which is a new privilege that hasn't previously been held to be a privilege, which President Bush and now, I think, many other individuals have expressed support for that kind of a privilege, remember, no Secret Service agent has been alleged to have seen a crime. The only issue in that particular instance is whether or not they saw the president alone or not alone with Ms. Lewinsky, since he's already testified under oath that he might have been alone with Ms. Lewinsky, the assertion of that privilege and Mr. Starr's attempt to break the confidential relationship between a Secret Service agent and the president I think is the reason that President Bush was very much opposed to what Mr. Starr was doing.
PHIL PONCE: Mr. Gray, just in terms of looking at it in a very--in a very sort of simplistic way, is executive privilege a function of just how bad the act may have been and how compelling the need for privacy?
C. BOYDEN GRAY: Well, there are a couple of steps you have to go through. First, there's whether the privilege applies at all, and then the question is with how much force. There is a question here whether, this being a purely private matter, the privilege applies at all, and then the question would be, well, if it does, is it a national security type issue where the privilege may be close to absolute, very hard to break. It is a balancing test at some level. But if the privilege doesn't apply at all, there's nothing to balance, and then you have to take a look at the requests, the subpoena from the independent counsel, and he does have to make some showings of me before he can get information even if there's no privilege applicable.
PHIL PONCE: And the likelihood of an appeal, Mr. Davis.
LANNY DAVIS: I don't know the answer to that. I share Boyden's concern about a loss at the Supreme Court level establishing a better precedent that undermines the privilege for the future. But I believe the White House takes this very, very seriously. As I said, they're not motivated by the concern of the contents of the answers; they're motivated by a precedent for this White House and for future White Houses. So I think they have to weigh very carefully the possibility of success versus defeat, versus the, I think, politically easier course of allowing these individuals to answer the questions which don't have the slightest chance, in my view, of harming the president's case and the investigation as it might proceed against him.
PHIL PONCE: And there's also a political dimension if the case were to be appealed to the Supreme Court and if the Supreme Court were to rule unanimously or overwhelmingly against the president, that would also--that would also be of concern presumably.
LANNY DAVIS: The risk assessment in--as Boyden and I were talking about before we came here--the risk assessment is if you lose on appeal, what precedent do you cite, and in this we're in a political environment, what would be the political consequences of a Supreme Court loss? But I think because the president has shown the willingness to fight for executive privilege in the Shurburn case, when he knew that there was nothing there that was going to be harmful--shows--
C. BOYDEN GRAY: The attorney-client privilege.
LANNY DAVIS: --in that case it was attorney client--but attorney-client is under the umbrella of executive privilege, then I think that it shows that this White House is concerned about the constitutional principle to be upheld, as I said, for all ages, not just for this White House.
PHIL PONCE: And, Mr. Gray, briefly, what is the posture that the courts take on appeal towards questions involving executive privilege, the Supreme Court specifically?
C. BOYDEN GRAY: Well, they've only really ruled once in recent times--that's the Nixon tapes case--the court of appeals here in the district ruled more recently, and one of the instant questions is whether this will be ruled on in the first instance by the court of appeals or the Supreme Court. It is possible that this will not see the court of appeals. It will go straight to the Supreme Court, as it did in the Nixon tapes case. There is a procedure about which this thing can be expedited to the full Supreme Court, in which case it might get decided before they abandon--before they adjourn this spring, which it will do around the end of June or beginning of July. If it does go to the court of appeals first, then this case may drag on until nearly Christmas.
PHIL PONCE: And in order to get to the Supreme Court, they take a fairly limited view of expanding this privilege.
C. BOYDEN GRAY: I think they would say--I think this would be--if it were appealed, I think this would be a pretty--if not unanimous--close to unanimous decision against the president.
PHIL PONCE: Mr. Gray, Mr. Davis, that's where we'll have to leave it. Thank you both.
LANNY DAVIS: Thank you very much.