A President's Right to Secrecy
Clinton's decision to invoke the controversial protection may put Starr on the defensive.
WASHINGTON — If nothing else, the increasingly bitter struggle between independent counsel Ken Starr and the White House will likely clarify and define one of the presidency's most important legal shields: executive privilege.
It's a tool that Bill Clinton and his lawyers only reluctantly decided to brandish. They're aware that it evokes memories of Watergate and a defensive Richard Nixon.
But executive privilege, which holds that some discussions between a president and his aides should remain secret, could constitute powerful protection for an embattled Oval Office occupant.
Even if a federal judge disallows Mr. Clinton's privilege claims - an outcome some experts consider likely - they may have the practical effect of putting Mr. Starr on the defensive and slowing the already glacial pace of his inquiry.
"This will have the effect of delaying Starr's investigation," says Viet Dihn, an associate professor at Georgetown University Law Center here. "The timing now is not entirely up to [him]."
Despite its association with Watergate, executive privilege is a doctrine whose roots go back to George Washington's time. Its murkiness stems from the fact that while courts have recognized its legitimacy, it has never been spelled out in a law or definitive Supreme Court ruling.
Its premise is that unless some communications between a president and his staff remain privileged, or shielded from the courts and Congress, aides won't always provide unvarnished advice.
Neither Clinton nor his lawyers have spoken publicly about their recent claims of executive privilege. Indeed, while touring Africa this week the president has several times professed to know little about the matter.
But widespread reports indicate that the president's legal team has invoked executive privilege to try to preserve the confidentiality of communications from two top aides, Bruce Lindsey and Sidney Blumenthal. The discussions in question dealt with the sex and perjury allegations involving former White House intern Monica Lewinsky.
Not all the conversations the White House says should be shielded were between these aides and Clinton. The privilege claim reportedly extends to talks involving Hillary Rodham Clinton, too.
The White House may point to two recent court rulings in arguing that Mrs. Clinton's conversations should be shielded. In one, she was held to be a government staffer as head of the 1993 health-care task force. And last year an appeals court found that executive privilege can extend not just to communications involving the president himself, but also to those between senior advisers.
Still, given her officially non-official status, extending the protection of privilege to protect a first lady would be a novel approach to the law, say experts.
"A conceivable case can be made for it, but it's difficult," says Mark Rozell, a political scientist at American University in Washington who has written extensively on executive privilege.
The president's overall claims of executive privilege may be on similarly shaky ground, say Mr. Rozell and some other experts.
To understand why that might be the case, consider the purpose behind executive privilege. The idea is that the deliberations behind important matters of state don't always need to become public. Presidents might reasonably need to keep their discussions about whether or not to bomb Iraq secret, for instance.
Courts have traditionally held that there are three policy areas protected by privilege. They are military and diplomatic affairs, law enforcement, and the general deliberative process of making important public policy.
The question then becomes whether Lewinsky-related matters fall into these categories. Some scholars of executive privilege don't see how that could be the case.
"I do think this assertion of executive privilege is rather tenuous," says Mr. Dihn. "It is being asserted in an area that deals not even with official policy much less any national-security policy."
Others say it is impossible to know how strong Clinton's legal executive privilege claim is without knowing its details.
"What if they were talking about Monica Lewinsky and the impact the Lewinsky situation would have on attacking Iraq?" says Stanley Brand, an attorney at Brand, Lowell, & Ryan in Washington, and a former counsel to the United States House of Representatives. "Then it would be a different matter."
Mr. Brand also defends the White House claims on the grounds that they are not comparable in scope to those made by President Nixon when he attempted to shield his White House tapes.
"Clinton's undergone over a four-year investigation, and really we haven't seen any claims of privilege until this endpoint," Brand says. "Mr. Starr has gone way afield in an effort to get the president and his staff."
US District Judge Norma Holloway Johnson has held closed-door arguments on these questions several times in recent days. She is expected to rule on Clinton's claims within weeks.
Whatever her decision, it could well be appealed all the way to the Supreme Court. This could delay Starr's investigation for months, at a time when he is coming under increasing pressure to wrap it up and perhaps present his findings to the House for lawmakers' consideration.
But it could also have the effect of providing the nation's highest court with a chance to shed some light on a difficult area of law.
"This controversy could at least have the positive effect of defining the bound of executive privilege for future presidents," says Rozell.