President Clinton and Executive Privilege

J. Jackson Barlow

March 5, 1998

In spite of his recent troubles, I still have an autographed photo of Bill Clinton hanging on the wall of my office. When I got it, I was going to file it away, but then a colleague told me it was worth $175, so I decided to hang it up, just to show I could afford it. Besides, Mr. Clinton is trying to be a New Democrat, which means talking like an old Republican. He doesn’t always do it very well, but I appreciate him trying.

Lately, Mr. Clinton has been sounding more like Richard Nixon than like any other old Republican. Mr. Clinton and his team are even using “executive privilege” to prevent Kenneth Starr’s prosecutors from asking White House aides questions about the Lewinsky matter. Like Mr. Nixon’s, this effort will almost certainly fail.

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 has never been considered absolute. 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. Thanks to the 5th Amendment, we cannot be forced to give evidence against ourselves. But we can be required to answer questions about others. The President’s aides have no right to hide what they know just because of who their boss is. The Supreme Court’s decision last year, allowing Paula Jones’s civil lawsuit against Mr. Clinton to proceed, 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. The public has a right to know if Bill Clinton has made Richard Nixon’s mistake, confusing his personal interests with those of the office of President. As Mr. Nixon’s fate shows, that confusion does no good for the man, or the office, or the country.

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