Executive Privilege, Politics, and the Constitution

J. Jackson Barlow

March 1, 1998

By asserting “executive privilege” in the Jones/Lewinsky case, President Clinton has embarked on a risky strategy for his defense. Politically, it may work. Constitutionally, it is a sure loser.

On a political level, waiting for the trial judge to rule and then waiting for the appeals will allow the issue to fade. Constitutional law does not command as much air time as “bimbo eruptions.”

But on the constitutional issue, Mr. Clinton will lose. He will find what Richard Nixon found a generation ago: the courts will not recognize a claim that presidents or their aides may refuse to answer proper questions in a criminal investigation.

The doctrine of executive privilege was created to keep information and advice confidential when, in the President’s judgment, the public good demands it. But the President’s judgment alone does not decide the issue. The public, the Congress, and the judiciary may question it, as the 1974 Watergate tapes case, U.S. v. Nixon, showed.

In that case, the Supreme Court ruled that the “fair administration of criminal justice” outweighed the president’s right to the “confidentiality of presidential communications.” Given a legitimate demand for information from a prosecutor in a criminal case, the Court said, the President had to comply.

The Clinton team will have to show that the public good demands that the President’s conversations with his aides about the Jones/Lewinsky matter be kept private. This is where they have a problem. The judge in the case will have to decide whether any, or all, of these conversations are protected by executive privilege. But nothing made public so far suggests that these conversations are within the scope of the privilege recognized in the Nixon case.

These are not discussions about foreign policy or appointments to high office or pending legislation. They are not conversations, except indirectly, about the office of the presidency. Mr. Clinton wants to protect discussions about handling a lawsuit involving his personal conduct before he came into office, and what to do about the embarrassing publicity surrounding an inconvenient young ex-intern. These conversations are entitled to the same constitutional protection as anyone else’s—no less, and no more.

Private conversations have never been completely exempt from judicial inquiry. The recognized privileges include the “attorney-client” privilege, which protects conversations between lawyers and their clients. Bruce Lindsey, as deputy White House counsel, and not the president’s personal attorney, is in a gray area. In any case, a media advisor like Sidney Blumenthal clearly does not fall into this category.

Another way to protect private conversations is to invoke the 5th Amendment, which says we cannot be forced to give evidence against ourselves. This of course would be politically unacceptable. Many people, especially in the media, might be tempted to jump to the conclusion that there is something to hide.

Although we can protect some of our conversations, we can still be required to answer questions about others. “Executive privilege” amounts to a claim that President’s aides have a right to hide what they know just because of who their boss is. This is not the principle of our law or Constitution. The Supreme Court’s unanimous decision last year, which allowed the Jones case to go forward, confirms the principle that the President is subject to the same legal process as everyone else.

The President may find that the Independent Counsel’s questions are personally embarrassing, or politically damaging. But in our system no one may use the power of high office to deny justice to another. If Mr. Clinton has used his office—and his aides—to obstruct justice, the Constitution will not protect him.

No one, no matter how powerful, has the privilege of hiding evidence of crime. The President’s conversations, like anyone else’s, are open to appropriate judicial examination. More importantly, presidential conversations are public business if they reveal a pattern of abuse of power.

Mr. Clinton came to office as a “new Democrat.” But there is nothing new about White House arrogance. We have been down this road before, and it is a painful one.

J. Jackson Barlow is an Adjunct Fellow at the Ashbrook Center for Public Affairs at Ashland University.