Presidents and Privilege

Nearly a quarter-century ago, the Supreme Court laid out the dimensions of "executive privilege." Ruling on President Nixon's effort to withhold information contained on White House tapes, the court ruled that the privilege existed, but only clearly applied in matters of national security and diplomacy.

That definition didn't embrace Mr. Nixon's claims then, and it almost certainly doesn't embrace President Clinton's claims today. In both cases, the matter at hand is an investigation into possible criminal acts by the president. Judges have been very stingy about extending claims of privilege in this context.

Many Americans may bridle at comparisons between Nixon's situation and Clinton's. And the differences are significant. One sprang from an act of burglary that grossly distorted the political system. The other is alleged to have involved a gross personal indiscretion. But Watergate is viewed in hindsight, with full knowledge of the extent of the coverup and its obstruction of justice. The facts concerning Clinton's case are still largely obscured from view.

And the assertion of executive privilege made on behalf of the president's aides last Friday can only extend the obscurity. The most worrying similarity between the Nixon and Clinton cases, in fact, could be a tendency to draw out the investigation and accompanying turbulence by rejecting the reasonable option of full cooperation and disclosure.

White House deputy counsel Bruce Lindsey and other Clinton aides have been deeply involved in strategy sessions related to the Jones/Lewinsky/Willey matters. What they know could be of the greatest political and personal importance to the president. The White House claims, on principle, that aides shouldn't be compelled, before a grand jury, to divulge their conversations with or about the president. How can a presidency function, it asks, minus some guarantee of confidentiality?

A fair question. But it has to be weighed against another: How can a system of justice work if any citizen, including the one who holds the highest position of power, can opt out of the duty to tell - and allow his aides to tell - the truth?

Again, the information at issue here doesn't involve the weighty matters specified by the Supreme Court in 1974. It doesn't involve even the conduct of official duties, another test erected for claims of privilege.

The president will probably lose the argument with independent counsel Kenneth Starr over executive privilege. But that final ruling could come many months down the road, ultimately from the same high court. The Paula Jones ruling will come and go; the fall elections could come and go. The White House may be counting on public ennui with this story and continued support for a chief executive who watches over a purring economy.

As a political calculation, that may make sense. Ethically, it's insensitive.

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