March 24, 1998
Independent counsel Kenneth Starr's investigation into the Clinton administration has hit a new snag. According to lawyers, the president has claimed executive privilege to protect several of his advisers from testifying before the grand jury. Is this a proper use of executive privilege? Following a background report, two former White House counsels and two law professors debate the concept with Margaret Warner.
MARGARET WARNER: Now, joining us with more are two former White House counsels: C. Boyden Gray, who held the job during the Bush administration; and Jack Quinn, who served during the first Clinton term; and two law professors, Kathleen Sullivan of Stanford University Law School and Douglas Kmiec of Notre Dame University Law School; he is a visiting professor of law at Pepperdine University this fall.
A RealAudio version of this segment is available.
March 24, 1998:
A background report on the executive privilege issue.
March 16, 1998:
A discussion of the latest allegations against the president.
February 19, 1998:
C. Boyden Gray and Jack Quinn debate the claim of executive privilege.
February 18, 1998:
Washington Post's Dan Balz discusses the possibility of Bruce Lindsey claiming executive privilege.
A look at the Clinton crisis and the President's first interview on the Monica Lewinsky scandal.
Browse NewsHour coverage of the White House and legal issues.
Full coverage of the Clinton crisis from The Washington Post.
The legal history of executive privilege.
Kathleen Sullivan, executive privilege is not in the Constitution. Where does it come from and what does it protect?
KATHLEEN SULLIVAN, Stanford University Law School: Well, Margaret, it's true, it's not in the words of the Constitution, but it comes from the principle in the Constitution that we have the separation of powers. The White House can't be made subject to the Congress or to the courts by having inquiries that would make it unable--make the President unable to meet with his top advisers. It really reflects the very common sense principle that you couldn't conduct policy-making in the White House if every top aide to the President knew that his or her communications with the President or with each other could be revealed to the whole world at the drop of a hat. Nobody could make policy under that kind of circumstance.
So for a quarter of a century the Supreme Court has said that when the President or the President's top aides communicate with one another about matters of national policy, they are presumptively privileged in those communications and a prosecutor can't get hold of those communications unless that prosecutor can show not only that he might find something relevant in them but that he has some very specific piece of evidence that is very important, that is in those communications, and--and this is crucial--which he cannot find elsewhere through due diligence. That's the showing that Kenneth Starr would have to make to overcome the showing of executive privilege in this case. Now, as to arguments that it's not properly raised, of course, it's properly raised any time there is a matter of national policy that's being discussed by the President or by his top aides.
MARGARET WARNER: Douglas Kmiec, do you agree with that analysis?
DOUGLAS KMIEC, Notre Dame University Law School: I think Professor Sullivan has well stated the nature of the privilege. But I think we fundamentally disagree perhaps on whether or not there's any matter of national policy here. It's longstanding practice--and it certainly was by memorandum within the Reagan administration--that executive privilege should only be asserted under--and these are the words of the memorandum--the most compelling of circumstances, when it relates, as Kathleen said, to national policy.
Well, the problem with the current assertion of executive privilege is one finds it very hard to trace the assertion or the need for the privilege to anything related to policy. This isn't a question dealing with military secrets or national security. This isn't necessary to maintain the integrity of an ongoing criminal investigation. In fact, quite the opposite; the assertion of the privilege here seems to be calculated to undermine the integrity of an investigation. And as to the issue of deliberative process, the courts have been really quite clear. We've had a number of rulings where the court has said, yes, deliberations must be candid, a certain amount of secrecy is important. But it's secrecy in the formation of policy in terms of implementing and carrying out the rule of law. It is not secrecy for thwarting criminal investigation or an inquiry into misconduct.
Is this a proper situation to invoke executive privilege?
MARGARET WARNER: Do you, Jack Quinn, think it applies in this case? First of all, which of those tests do you apply, and does--is executive privilege properly invoked in these either the conversations the President had with Lindsey or Blumenthal, or conversations they might have had together?
JACK QUINN, Former Clinton White House Counsel: First of all, none of us knows what questions Ken Starr put to these witnesses. Secondly, none of us knows what matters the White House is trying to protect. I think Professor Sullivan's--
MARGARET WARNER: And both of those are very important, you agree?
JACK QUINN: They're very important, very important. So we're a little bit here flying blind. But I think we would all agree that executive privilege cannot be used to shield factual discussions about private conduct. I would be very surprised if that, in fact, is what the White House is asserting executive privilege to protect. It is not, however, simply policy development that is to be protected. There are other matters within the President's constitutional duties that are protected. In, for example, the most important case now on the books, I believe, the so-called "Espy case" in the District of Columbia Circuit, which went into this matter in depth, the court--
MARGARET WARNER: Explain. This was last year.
JACK QUINN: This was last year. And what the court did was prevent an independent counsel from getting the so-called vetting notes, that is to say the notes of the background checks that people did who were evaluating candidates for cabinet positions. Now, that didn't involve the formation of policy. It involved the President's constitutional duty to appoint officers of the government. The court said to the independent counsel you can't have those notes because you've not demonstrated any clear need to get them that outweighs the President's interest in being able to get candid advice. And I think it bears emphasis that executive privilege is not designed to enable presidents to hide things, to cover up wrongdoing. In fact, it's in--it is a constitutional principle that is designed to encourage candor, forthcomingness, and honesty in government, because if you can't be sure that your advice to a president will be kept confidential, you might not tell him what he needs to hear in making decisions.
Mr. Gray: "What's at stake here, in a sense, is whether the taxpayer should be paying for the President's defense for the conduct that is private..."
MARGARET WARNER: Boyden Gray, how do you read the breadth of this doctrine and whether it applies potentially in these cases?
C. BOYDEN GRAY, Former Bush White House Counsel: Well, I think the law has been stated--the Supreme Court's decision says there's a generalized privilege for policy making, if you will, for governmental decision making, which can be overcome by showing of need by an independent counsel. The court set a dictum that if there are military secrets and the national security at stake, the privilege may, in fact, be absolute. The case that Jack Quinn's talking about involved the appointment power, a core function of government, but, again, I don't believe that case stands for the proposition that that particular governmental interest is absolute. But, in any event, in this case, we don't--as Jack said--we don't know--but it doesn't appear as though there is any core function of government at issue. It's, instead, a private lawsuit involving private behavior. Now, I wouldn't quarrel with the President's need for candid advice. But he has two very high power law firms, and Bruce Lindsey is as important to the President for advice as he appears to be. And Bruce Lindsey could easily be detailed, if you will, back into the private sector to work for those firms, where he would have a clear claim of attorney-client privilege, it would be virtually absolute. What's at stake here, in a sense, is whether the taxpayer should be paying for the President's defense for the conduct that is private or whether the government should be paying for it. That's part of this. It's not all of it but it's part of it. And I don't think ultimately the President is going to win this case.
MARGARET WARNER: Okay, briefly, because I want to go to Douglas Kmiec.
JACK QUINN: Let me try to draw the distinction. I agree with Boyden that a factual discussion about private conduct wouldn't be protected, but it well might be here that conversations took place about whether or not the President should testify before the grand jury. That would have a profound effect on the institution of the presidency. It's something the President's lawyers ought to be able to counsel him on in confidence.
KATHLEEN SULLIVAN: I'd go further than that and say there may be all kinds of conversations that might touch on the Lewinsky matters or the Jones matters but also be about the execution of presidential duties. Obviously, if the President says to Bruce Lindsey, I want you to go tell that woman to lie for me, that would not be protected, but if the President says to somebody in Bruce Lindsey's high ranking position, should we do the education conference tomorrow, should we go have it--a press conference at a school on our education policy, or is the press going to just want to talk about Starr and just want to talk about Paula Jones? That might implicate public policy, and presidential duties, even if the subject of the conversation touches on the Lewinsky--
DOUGLAS KMIEC: I think we've gotten a bit hypothetical here.
Can Starr meet the requirements for beating executive privilege?
MARGARET WARNER: Doug Kmiec, let me just ask you a non-hypothetical question, but it goes to something both Jack Quinn and Kathleen Sullivan raised, which was that in the Nixon case the justices put quite a burden on the prosecution to prove that he or she needed this information, couldn't get it from another source, and so on, and as we recall, in that case, six people were already on trial, Mitchell and so on for the coverup, Nixon was an unindicted co-conspirator. Do you agree there's a big burden on the prosecution, and how could someone in Starr's position meet that?
DOUGLAS KMIEC: Well, there's no question that there is a burden on the prosecution. I do think the burden is capable of being met by the independent counsel. It is the burden that was--that was described by Kathleen Sullivan, basically one that says a specific need for this information and the information cannot be obtained anywhere else. It's very clear that what the independent counsel is investigating. We don't have the details of it, but it's very clear that there's a serious concern about obstruction of justice. The need for the internal notes that are being asked for relate directly to that. And I think that's where the Espy case fundamentally differs. I think we have to remember, first of all, with regard to Espy that the court upheld the privilege generally but also remanded the case, that is, sent it back and allowed the independent counsel to make the further showing, which I think the independent counsel can make here. And the other thing that I think we have to point out where there's a difference is that fundamentally here the attorney general of the United States, who normally is a very important adviser in this question, has basically thrown up her hands and said, I can't give you advice on this. It does not appear that the attorney general has concluded that there are presidential office or official interests at stake here, and, as a result, she has told--and I think quite properly--the President to go get his own private counsel to handle his own personal misconduct inquiry.
JACK QUINN: That is just not so.
MARGARET WARNER: What is the fair inference?
JACK QUINN: The fair inference is that the attorney general has said because in this matter the independent counsel's representing the United States I cannot counsel you on this matter. No inference should be drawn or can fairly be drawn about her views as to the validity of any privilege claim. That is just not so.
DOUGLAS KMIEC: Clearly, that's right. But she has said, Jack, and I think this is true that the interests of the Department of Justice, which are to supervise the proper implementation of an investigation and a criminal investigation, are not immediately apparent to her and at stake. And, as a result, she has reserved the right to intervene with counsel for the Department of Justice, but she has not done so.
The case of the First Lady and Sidney Blumenthal.
MARGARET WARNER: Okay. Let me go back. And, Kathleen Sullivan, starting with you on the other issue that was raised in The Washington Post story today, which was that apparently or reportedly the White House is also saying that Sidney Blumenthal's conversations with the First Lady should be covered by executive privilege. What would be the basis for that?
KATHLEEN SULLIVAN: Margaret, the courts have said clearly that the President's senior advisers are protected by the President's own communicative privilege, and that's because he's got to be able to have his advisers talk to one another once they step outside the Oval Office about what they're going to tell the President to do. So that's clearly established. What's not clear is whether that senior adviser privilege would extend to the First Lady. That's a new question we haven't faced before, even though I'm sure we can all agree that First Ladies, from Martha Washington to Barbara Bush--not just Hillary Clinton--all gave policy advice and had policy discussions with their husbands. So it would come from the idea that senior advisers--and the First Lady is like a senior adviser who discusses policy with the President--have to enjoy the same privilege as the President, himself, enjoys. But, Margaret, we've got to remember one thing here, and put this in the big picture. What's going on here since Watergate is something unprecedented. We've got two flanks of the office of the presidency exposed to new forms of attack. On the one hand, we have the office of independent counsel unchecked in its budget, unchecked by time, with its sights set on one man, the President of the United States. That's a very serious new form of attack on the office of the presidency, which Justice Scalia, a very conservative justice, predicted long ago would be dangerous.
MARGARET WARNER: All right. Let me let Boyden Gray in this on the First Lady. And Boyden Gray, how do you read the claim of executive privilege for her?
C. BOYDEN GRAY: Well, I think she may be entitled to senior staff status if she had the same burdens that senior staff had for conflicts of interest and other accountability controls that are placed by the government on such high-level people. And that we don't know anything about. I don't think the White House can have it both ways, which I think they may be trying to do at this particular time.
MARGARET WARNER: You mean, because she is not--she doesn't hold an official job and isn't subject to all the same responsibilities and accountabilities, she can't later claim to be an adviser?
C. BOYDEN GRAY: I don't believe so.
MARGARET WARNER: In a legally protected sense.
C. BOYDEN GRAY: I think that's correct. I think there could be a potential problem there if--which came up in the--in the health care task force area, where she was claiming to be a public employee for purposes of the health care task force. And that created certain problems, and this could create also certain problems for the White House. But this is an untested theory. This is totally untested, the theory as to whether the First Lady can be included as staff for purposes of a claim of privilege of this kind.
Setting the precedent.
MARGARET WARNER: Would you say, Jack Quinn, and I'll let you respond to that, this case, as it makes its way through the courts, is going to be precedent setting in this respect, if none other?
JACK QUINN: Sure it is. It is going to be precedent setting. But I think it does bear emphasis that the court resolve the question in the First Lady's favor in the health care litigation. She was treated as being tantamount to a senior adviser on the staff.
MARGARET WARNER: Okay. But--go ahead.
DOUGLAS KMIEC: Fundamentally, you still have to go back to the basic issue, and that is whether or not independent counsel can show specific need for this information and whether or not the President has any basis for privilege. So even if you want to take the extraordinary step and extend the privilege to Mrs. Clinton and the kind of advice she gives to the President, it still has to be anchored back to the formation and deliberation and the preparation of policy. You know, Kathleen Sullivan mentioned that this is a new world, a new world of an independent counsel with an unrestrained budget and a single target. Well, it bears remembering that that new world was created as a result of the abuses of the presidential office during the Watergate era.
MARGARET WARNER: Okay.
DOUGLAS KMIEC: And one of the real concerns here is that an expansive assertion of privilege might lead to the same kinds of distortions of our system.
MARGARET WARNER: All right. Thank you. And we're going to be in a new world or a new show if we don't end this, but thank you all three, and Kathleen Sullivan, very much. Gentlemen.