United States v. Clinton
United States v. Clinton Monday through Thursday of last week marked what must be the most cynical fourday period in the history of the American presidency. For more than three months, from...
...On June 4, solicitor general Seth Waxman told the Supreme Court that the Justice Department was “unable” to conclude that any final, emergency resolution of this question was necessary...
...Until this privilege is firmly established in law, the Justice Department has argued, the president will fear his bodyguards as potentially hostile criminal witnesses—and hold the Secret Service at arm’s length, thereby dramatically heightening his risk of assassination...
...Quickly...
...But there was bolder stuff to come...
...Protective-function privilege has not been established in law, of course...
...The two men must be allowed to refuse grand-jury inquiries in the matter, the White House advised U.S...
...But on June 1, the White House told the Supreme Court that Judge Johnson had erred...
...Finally, last Thursday came the Clinton administration’s latest explication of “protective function privilege,” the newly invented doctrine under which Secret Service agents have so far resisted giving their testimony to the Lewinsky grand jury...
...Attorney general Janet Reno, incidentally, tells reporters that Waxman, her employee, reached this amazing conclusion on his own, without her direction...
...White House staffers are not obliged to come forward when they become aware of a felony because “in this context,” the law says, “the Office of the President is not a ‘department or agency of the executive branch of the government.’” In other words, the White House last week declared itself, for purposes of the Monica Lewinsky scandal, a fourth branch of government, unanswerable to the judiciary or Congress...
...The Clinton administration, in short, has made itself accountable to nobody...
...In their own brief to the high court, filed that same day, White House lawyers went so far as to suggest that Starr had imagined the entire episode...
...David Tell, for the Editors...
...But then, on May 28, Starr sought Supreme Court intervention to short-circuit all this folderol—in a case evocatively labeled United States of America v. William Jefferson Clinton and the Office of the President of the United States...
...and Lindsey’s knowledge of said crimes, gleaned in the course of defending the president, is therefore beyond reach of the grand jury...
...For more than three months, from late February to the end of May, the Clinton administration argued that the Republic would collapse were White House aides Bruce Lindsey and Sidney Blumenthal forced to testify, unprotected by “executive privilege,” about Monica Lewinsky...
...She had misapplied the law...
...the president is therefore entitled to an official defense by government lawyers like Lindsey...
...And Clinton’s West Wing—the new fourth b r a n c h — a n n o u n c e s through press secretary Mike McCurry that its total innocence of any Lewinskyrelated crime is no longer in serious dispute...
...district judge Norma Holloway Johnson, if the president “is to perform his constitutionally assigned duties...
...And because executive-branch employees, including Lindsey, are required by law to report criminal evidence to the appropriate authorities...
...This was bold...
...After all, the president’s lawyers have “stipulated to that in the court documents that have been filed...
...The most “rudimentary constitutional principles” require such absolute secrecy, the president’s lawyers insisted, and “one cannot overstate the intolerable threat” posed to the institutions of American government by any demand that Lindsey and Blumenthal tell the whole truth...
...No matter...
...Executive privilege...
...Sooner or later, the legislative branch, the first branch of government, will need to vindicate the rule of law...
...She ordered both men to reappear before the grand jury and answer every disputed question...
...This crisis cannot ultimately be resolved by the independent counsel and the courts...
...Judge Johnson rejected it out of hand...
...Early last month, Judge Johnson ruled that this theoretical privilege must fall...
...The independent counsel, they sarcastically informed the justices, “purports to present questions that the Office of the President would not have raised in the court of appeals...
...Whereupon the White House, hoping to tie up independent counsel Kenneth Starr in another few months of litigation (and withhold the Lindsey/Blumenthal executive-privilege evidence from any impeachment report Starr might forward to Congress), asked the federal circuit court to review and overturn Judge Johnson’s ruling...
...Never heard of it...
...That claim has always been tortured but explicit: Clinton’s Lewinsky-related crimes might prove so grave as to warrant an official impeachment proceeding...
...The Secret Service and Treasury Department, for their part, claim to be asserting the presidential protectivefunction privilege without instruction from their boss, the president...
...Last week the White House did not abandon— but instead restated and actually expanded—a separate claim of “attorney-client privilege” over part of Bruce Lindsey’s subpoenaed Lewinsky testimony...
...And White House urgency, along with those “rudimentary constitutional principles,” suddenly disappeared...
...Because the independent counsel had demonstrated a conclusive need for Lindsey’s evidence...
...And in the same breath, the White House reassured the Supreme Court that “the fate of the Nation will not hang in the balance” if this astounding subversion of the Constitution is maintained for another few months...
...And while the administration pursues an appeal of her ruling, the president must therefore remain in peril, right...
...On Monday, June 1, without courtroom explanation, the administration mooted the executive-privilege controversy by abandoning the claim altogether...
...Time magazine reports that Clinton has decided never personally to cooperate with the Starr investigation...
...The president, for his part, now contends, through White House counsel Charles F. C. Ruff, that he owes the American people no further explanation of his relationship with Monica Lewinsky...
...Better that the president be vulnerable to bodily harm, apparently, than that the Lewinsky grand jury determine he had sex with an intern...
...Judge Johnson was not impressed by these outlandish warnings...
...The issue was of such moment and enormity, according to the president’s attorneys, that the appellate panel should accept briefs and hear arguments on a special, “expedited” basis...
...Which means we have a constitutional crisis on our hands...
Vol. 3 • June 1998 • No. 39
