clock menu more-arrow no yes

Filed under:

The murky question of privilege

Nowhere does the U.S. Constitution mention the executive privilege, but the Supreme Court has said that the concept is implicit in the doctrine of separation of powers.

And because that's all the high court has done - in a unanimous 1974 ruling saying that executive privilege did not cover President Nixon's infamous tapes - the concept remains legally and politically murky. Because Nixon gave executive privilege such a bad name, subsequent presidents have rarely invoked the privilege and declined to force the point when challenged.That may change under President Clinton. He has assembled a platoon of both private and White House lawyers who are prepared to make the case that executive privilege would prevent his closest aide, Bruce Lindsey, and other top White House officials, from testifying in federal court with regard to Monica Lewinsky.

Executive privilege is intended to insure that a president gets the frankest and most candid advice from his advisers by making those conversations immune from subpoena by the judicial and legislative branches, a federal prosecutor or congressional committee, for example.

Executive privilege is assumed to cover confidential presidential communications involving national security or other vital interests. Most outside legal experts say the White House would have a tough time proving that executive privilege extends to the question of whether the president had sex with an intern.

Sooner or later, the issue of executive privilege will have to be thoroughly litigated with the Supreme Court establishing ground rules for its use and the legal tests under which it must be waived.

Unfortunately, if the president's legal platoon persists, the Clinton White House may be the test case, although sex in an Oval Office anteroom hardly rises to the level of a constitutional principle. The Clintons, as they have done with other matters, have vastly complicated and muddied the legal issues at stake by their ingrained habit of casually intertwining their professional and personal lives.

The old adage of bad cases make bad law applies here. This is a bad case on which to define executive privilege. The outcome is likely to be bad law.