Executive privilege is back on the docket of the Supreme Court. And however that court rules on President Clinton's efforts to withhold the testimony of top aides from a grand jury convened by independent counsel Kenneth Starr, its decision should bring added clarity to a doctrine that fits uncomfortably with American tradition and governance.
Executive privilege was given both approval and restrictions in 1974 by the high court, when it ruled on President Nixon's attempt to withhold Oval Office tapes from Watergate prosecutors. Then, the justices unanimously held that the privilege existed, that a president had a right to confidentiality in matters of state. But they strongly ruled that the privilege couldn't be used to block a prosecutor's quest for relevant evidence in a criminal case.
Similar to the Watergate prosecutors, Mr. Starr is seeking evidence in a criminal investigation related to possible obstruction of justice and perjury. But the contexts in 1974 and today are widely different. Impeachment proceedings were already under way against Mr. Nixon. A crisis of unprecedented proportions confronted the country, and the evidence on the tapes, as it turned out, was pivotal in showing presidential collusion in obstruction of justice.
No such crisis exists today. The matter at hand - whether Mr. Clinton tried to alter Monica Lewinsky's testimony related to the Paula Jones lawsuit, and whether he lied about his relationship with Miss Lewinsky - doesn't strike at the workings of government the way the Watergate break-in and coverup did. But it does, nonetheless, involve allegations of criminal wrongdoing, and it invokes the same principle: that no one, including the president, is above the law.
The court should act favorably on Mr. Starr's request for an expedited hearing on the Clinton executive privilege claims, thus avoiding a long appellate review of the federal district court ruling rejecting those claims. The country needs a quick resolution here, just as it did in 1974.
Mr. Clinton and his aides would be wise to agree to a speedy Supreme Court review of the matter.