"He was born to privilege," said President Clinton about Franklin Roosevelt, at the anniversary gala for Time magazine, which has been defending him against Newsweek in the Monica wars. But it took Clinton to make "executive privilege" a pernicious habit.
Ever since the Supreme Court rejected President Richard M. Nixon's attempt to throw a cloak of privilege over his tapes, presidents have been reluctant to place their doings beyond the reach of courts and Congress. "The allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial," a unanimous court decided in 1974, "would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. . . . "And yet, as John Yoo noted in The Wall Street Journal, in his five years in office, Clinton has claimed privilege to withhold information from courts and Congress six times - as often as Ford, Carter, Reagan and Bush combined.
Moreover, Clinton's latest flirtation with a claim to being above the law involves an investigation into a cover-up about personal behavior. This has nothing to do with national security or with secret diplomatic exchanges, the reason other presidents cited in slamming the door to judicial or legislative inquiry.The allowance of the privilege to withhold evidence that is demonstrably relevant in a crim-inal trial . . . would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. . . .
This Clinton impulse to widen the perimeter of secrecy is causing a proliferation of privilege.
1. Spousal privilege. You can't force a husband to testify against a wife, or vice versa. Should this time-honored common law now be extended to parents and their children, to brothers and sisters, to gay couples denied marriage rites?
The ordinarily sensible Sen. Pat Leahy is drafting a "parent-child immunity" bill, following the anxiety attack exhibited in the grand jury by Monica Lewinsky's mother. (When Clinton's lawyers forced the testimony of Paula Jones' mother, no sympathy was remarked.)
2. Ghostly privilege. Ken Starr is now seeking the notes taken by the lawyer for Vincent Foster in a meeting a week before his suicide. The conversation may have been about the Whitewater cover-up; his former attorney argues that the lawyer-client privilege should extend beyond the grave.
Death ends certain protections; the law of libel cannot be invoked for a defamatory obituary. Because no fear of incrimination can exist in the deceased, notes or tapes made by witnesses or miscreants while they were alive should be available as evidence in trials of the living. But Foster's note-holder insists that death does not part a lawyer and his client.
3. White House counsel as personal lawyer privilege. Government-paid counsel at first used an executive-privilege claim to stall the independent counsel, refusing to hand over notes debriefing Hillary Rodham Clinton after her grand jury appearance. Sensing the claim's weakness, the Clintons then switched to attorney-client privilege, but that was denied by the 8th Circuit, and the Supremes tacitly agreed. This made plain that a White House lawyer's client is the people, not the president - and the notes were handed over.
4. The lawyer-client priv-ilege, noble in purpose, is not absolute. Starr seeks to overcome it in the case of the lawyer assigned to Lewinsky by Vernon Jordan, probably arguing it does not apply when a client uses a lawyer to commit fraud or tells someone else about her discussions with attorneys.
5. The protection privilege. Clinton is seeking a new immunity from testifying for his Se-cret Service detail, which would deny grand juries the testimony of agents even if they see or hear evidence of a crime - lest the president fear their close proximity and thereby make protection more dif-fi-cult.
Though regularly struck down by courts, graspings for new barriers to criminal, civil and congressional inquiry have become the hallmark of this administration.
Within weeks, this president will make the most sweeping executive-privilege claim ever, to provide unlawful cover to aides who may have helped tamper with witnesses. It must be resisted.
We do not need a Clintonian "Bill of Privileges" saving politicians from scrutiny, blocking the flow of truth and placing any class above the law.
New York Times News Service