Drawing pointed parallels between Watergate and his own executive privilege battle with President Clinton, Independent Counsel Kenneth Starr said Friday a president "must give way" and turn over evidence unless national security is at stake.
"If the evidence is relevant to a criminal investigation or prosecution, it must be turned over," Starr said in a Law Day speech that invoked momentous Watergate-era rulings to justify his own legal efforts - but without ever mentioning Monica Lewinsky.In what he called a "professorial" address, Starr went to lengths to describe historical precedents on the executive privilege issue, including President Nixon's losing fight with special prosecutor Leon Jaworski.
Starr promised at the outset of his speech "to steer clear of the controversy" surrounding Clinton and former White House intern Lewinsky.
But his references were clear as he spoke to the same bar association that Jaworski addressed 24 years ago - on the day the Nixon White House invoked executive privilege in an effort to stop prosecutors from listening to tapes made by a secret Oval Office system.
"As the Supreme Court said in United States vs. Nixon, the public has a right to every man's evidence, except for those persons protected by a constitutional, common-law or statutory privilege," Starr said.
Quoting Jaworski, he added: "Watergate taught the nation two valuable lessons - lessons that are especially appropriate for us to recall. First, our Constitution works. And second, no one - absolutely no one - is above the law."
Lawyers working for Starr argue that claims of executive privilege should not be allowed to block grand jury testimony by presidential advisers on personal matters such as the president's relationship with Lewinsky.
The White House counters that a president needs to be able to have confidence that he can seek confidential advice from his aides without risk of it being disclosed.
U.S. District Judge Norma Holloway Johnson is weighing both sides' sealed arguments.
Starr said the law presumes that "the public has a right" to critical evidence in a criminal case.
Using the Watergate-era Supreme Court decisions on the issue, Starr said justices acknowledged that "where military or diplomatic secrets are at issue, the president's claim to secrecy is especially strong."
But he quickly added that in instances where a president asserts merely a generalized interest in confidentiality, "the privilege must give way to what the court called the fair administration of criminal justice. If the evidence is relevant to a criminal investigation or prosecution, it must be turned over."
At the White House, aides said they felt Starr's speech did not give enough weight to a more recent court ruling in the investigation of former Agriculture Secretary Mike Espy that strongly endorsed the need for presidents to keep communications confidential in order to ensure strong advice.
"While we cannot comment on any matter before the courts, our view is consistent with that of the court's and Mr. Starr, who acknowledges the need for confidential communications and the need to balance that with the legitimate interests of the judicial branch," said spokesman Jim Kennedy.
Starr did not signal what is ahead in his court battle with the Clinton White House, but said he was heartened that it has provoked a healthy debate on the issue. "The recent debate on executive privilege ... has been wide ranging, informative, sometimes contentious," he said.
Jonathan Turley, a law professor at The George Washington University, said he thought the Lewinsky case "does not fall readily into a definition of the privileges of office, either in political or legal terms. . . . These claims on their face appear to be over the top."
Mark Rozell, an American University political professor who has written a book on executive privilege, said the arguments the White House is waging are "not as strong" as they would be if the conversations directly involved the presidency itself.
But he also said, "It is conceivable that high-level White House aides would be involved in discussions of the private nature and that the privilege would extend to them if the president specifically was aware of the content of those conversations and he personally invoked executive privilege regarding those conversations."