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CLINTON AND THE MISUSE OF EXECUTIVE PRIVILEGE

Independent Counsel Kenneth Starr's ham-handed handling of the Monica Lewinsky investigation has given President Clinton a virtual free pass when it comes to erecting roadblocks with little public backlash.

But a public skeptical about Starr should be just as skeptical about the Clinton team's most recent gambit: the bid to invoke executive privilege to further derail the independent counsel.

This latest White House ploy is a misuse of the privilege and an abuse that only a president riding so high in the polls might try to get away with in a case like this.

Most Americans first became familiar with executive privilege during the Watergate era. That's when the U.S. Supreme Court recognized the validity of the concept and simultaneously ruled that former President Richard Nixon could not invoke it to withhold evidence of wrongdoing in a criminal case.

Clinton's troubles stemming from his relationship with the former intern hardly seem of the same gravity as those Nixon confronted. But the crux of the issue is that he still is the subject of a criminal probe, and that probe is into matters that lie outside the scope of his official duties.

There is good reason for the notion that a president's governmental discussions with his top policy advisers be privileged. It is the only way a chief executive can be assured of getting candid input when making momentous decisions. No aide is likely to be bluntly honest when knowing what is said may have to be revealed after the fact.

But when a federal appeals court last year examined the concept of executive privilege in the separate probe of a former cabinet member, it wisely and explicitly built on the Supreme Court ruling by limiting the privilege to discussions pertaining to "official government matters."

Whether the president had sex with Lewinsky and then tried to obstruct justice by covering it up falls more in the realm of monkey business than official government business. Executive privilege was never meant to shield a president from those types of non-governmental legal troubles.

If the president wants privileged advice on how to deal with the Lewinsky matter, he should get it from his private attorneys, not from advisers on the government payroll.

Invoking executive privilege to stop government aides from having to testify about the Lewinsky matter may indeed defuse the Starr probe by dragging it out for months of legal wrangling, even if courts eventually deny the Clinton claim. In that sense, it might be a successful legal dodge.

But it's a misuse of the privilege. And as a legal scholar himself, the president should know that.

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