Affairs of State
Affairs of State On Friday, March 20, 1998, Bill Clinton's public and private attorneys made a novel claim in a Washington, D.C., federal courtroom. They claimed that nothing less than the United...
...They are announcing that what Bill Clinton did with Monica Lewinsky was "an official government matter...
...And yet that is what Clinton's lawyers are suggesting when they assert executive privilege over testimony about that sex and those lies...
...And they are denying that there is any legally meaningful distinction between this particular president's personal and political interests and the long-term institutional prerogatives of the White House he temporarily occupies...
...Executive privilege, the U.S...
...Court of Appeals for the District of Columbia ruled last June, "only applies" to advice prepared for the president "on official government matters...
...This is, needless to say, an extraordinary argument, even for proponents of a liberally interpreted "living" Constitution...
...All I know is I saw an article about it in the paper," he responded...
...I haven't discussed it with the lawyers...
...Last week, in Africa, Clinton was questioned by a reporter concerning the propriety of his executive-privilege assertion...
...It is an argument so mind-boggling, in fact, that its true import has almost completely eluded public notice...
...Once upon a time, as late as March 1994, in fact, President Clinton forswore any interest in the invocation of executive privilege...
...It's hard for me to imagine a circumstance in which that would be an appropriate thing for me to do," he said...
...A few months later, White House counsel Lloyd Cutler transformed the president's words into a formal statement of administration policy...
...Other traditional practices surrounding executive privilege seem also to have been abandoned by the Clinton regime...
...They are saying, in short, that Clinton is more like a king than an ordinary American president—that, as Clinton goes, so will go the presidency as an idea...
...What's new and astounding is the substance of the testimony this latest claim means to forestall...
...The hypocrisy of this legal maneuver is undeniable...
...But one searches Article II of the Constitution in vain for some sign that sex and lies are part of his job—or theirs...
...Technically speaking, of course, what the president's attorneys did on March 20 was assert the protections of "executive privilege" for certain Lewinsky-related conversations involving Clinton consiglieri Bruce Lindsey and Sid Blumenthal...
...But "our practice" is now the opposite...
...One of which, it later turned out, included notes a White House lawyer had made about an appointment to get her legs waxed...
...They claimed that nothing less than the United States Constitution gives the president authority to have sex with Monica Lewinsky in the Oval Office and to receive confidential advice from his staff about how to conceal that sex—even from a duly constituted grand-jury investigation into perjury and witness tampering...
...The attorney general was not consulted about this claim, either...
...The presidency's prerogatives, secured by executive privilege, forbid it...
...the Justice Department declined, on conflict-of-interest grounds, to participate in the decision about Lindsey and Blumenthal...
...Here, for that matter, the president himself seems to have been out of the loop...
...But the Espy decision contains a key sentence that White House spinners conveniently omit from their spin...
...The Clinton White House, Lindsey and Blu-menthal aside for the moment, has long since stretched executive privilege to the breaking point...
...No doubt Bill Clinton feels a personal interest in adulterous West Wing fellatio and breast grabbing...
...No doubt many of his aides feel a personal interest in helping him cover up such activities...
...The White House counsel's office spent most of 1996 withholding—as "subject to" an executive-privilege claim—some 2,000 pages of documents sought by Congress for an investigation into the White House travel-office and FBI-files scandals...
...In an advisory memo to the general counsels of all the executive-branch departments and agencies, Cutler gave the following instruction: "In circumstances involving communications relating to investigations of personal wrongdoing by government officials, it is our practice not to assert executive privilege, either in judicial proceedings or in congressional investigations and hearings...
...Weird...
...What, then, is really so new and astounding about the Lindsey and Blumenthal executive-privilege claim...
...And Bill Clinton cannot possibly have reviewed those documents individually...
...Especially weird, since "the lawyers" back in Washington who surely do know all about it refuse, on the phony basis of "grand-jury secrecy," to explain the matter at all in public...
...David Tell, for the Editors...
...The mind reels...
...Neither man can be forced fully to comply with those subpoenas, the White House now declares...
...You should ask someone who does know...
...Both men have been subpoenaed for testimony about their knowledge of the facts at issue...
...More to the point, federal case law makes quite plain that the universe of legitimate executive-privilege claims is narrowly circumscribed...
...It has been a convention of American presidents, ever since Richard Nixon was rebuked by the Supreme Court for withholding the Watergate tapes, to invoke executive privilege personally—and even then, only after careful, case-by-case staff review and only with the explicit concurrence of the attorney general...
...I don't know...
...Here, by contrast, the attorney general was absent from the scene...
...The president's lawyers are now constructing their argument largely on the basis of a 1997 appellate-court decision about the independent-counsel investigation into former Clinton agriculture secretary Mike Espy...
...Weird, but in these respects, at least, not that surprising...
...Federal case law makes quite plain that the need for confidential White House deliberations, even when theoretically legitimate, must, as the Supreme Court ruled in United States v. Nixon, "yield to the demonstrated, specific need for evidence in a pending criminal trial...
Vol. 3 • April 1998 • No. 29
