The President's Privileges
THERE are some questions White House aides Bruce Lindsey and Sidney Blumenthal will not answer for independent counsel Kenneth Starr. They are covered by executive privilege, says the White House. And that goes for Hillary Rodham Clinton, too.
Privilege! An interesting word. In its original meaning, it has to do with the advantages of the upper classes, like "the privileged rich." Then there are legal privileges shared by Americans - Fifth Amendment privilege not to incriminate yourself, doctor-patient, lawyer-client, and priest-penitent privilege to protect the confidentiality of these relationships. And First Amendment privilege to write and speak freely. And, not always upheld by the courts, to guard confidential sources.
Finally, certain privileges for people in authority, nominally so that they can serve us better. For example, the constitutional privilege of members of Congress not to be sued or prosecuted for what they say on the floor.
And, finally, that privilege nowhere mentioned in the Constitution, yet asserted by presidents back to Jefferson - executive privilege to protect the confidence of presidential consultations leading to decisions.
In 1948, the Supreme Court held the president could invoke executive privilege only in rare circumstances involving national security. In 1974, the court held that executive privilege is entitled to great respect, but not when it comes up against the prosecutor's need for evidence in a criminal case. That was when President Nixon had to surrender his lethal tapes.
So, can President Clinton get away with claiming executive privilege for conversations about strategy in dealing with current civil litigation and criminal investigation? Probably not if Starr can demonstrate that the information is relevant to his investigation and that there is no other way of getting it.
In the case of the Nixon tapes, there was no doubt on either of these scores. In the case of conversations of White House aides and the First Lady with the President and among themselves, there is no way of knowing from outside whether they meet the requirements the Supreme Court has so carefully set down.
The court will spend considerable time with presidential rights and immunities. It has already decided, in the Paula Jones case, that a president isn't immune from civil suit. Whether he's immune to criminal indictment is an open question despite special prosecutor Leon Jaworski's 1974 decision that Nixon couldn't be subjected to simultaneous impeachment and prosecution.
The court has now agreed to decide, in a case involving lawyer's notes of a conversation with White House lawyer Vincent Foster nine days before his suicide, whether lawyer-client confidentiality continues after the death of the client.
Soon we can expect the high court to be asked to redefine the limits of executive privilege. Never have we seen such a plethora of issues involving the presidency up for adjudication.
Daniel Schorr is senior news analyst for National Public Radio.