The Washington Times - March 21, 2007, 12:36PM
White HouseTony Snow SEE RELATED:


EXECUTIVE PRIVILEGE IS A DODGE
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Tony Snow
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Copyright Creators Syndicate Inc.
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March 27, 1998
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From Day One, the chief challenge facing this White House has been to place maximum distance between Bill Clinton and his behavior. This strategy has succeeded, but only with the help of mighty assaults on our common sense.\ \ \ To exonerate the chief, aides have made fantastic claims: that they lied to their personal diaries; that Velcro-brained lawyers couldn’t recall crucial incidents; that files vanished or moved from one place to another as if by magic; that scores of people with nothing to gain from lying nevertheless perjured themselves; and that this contagion of amnesia, sloppiness and venality was just the gosh darndest series of coincidences ever witnessed.\ \ \ The wall of separation between Clinton and his deeds remains strong because minions have stuck to their alibis. But now comes an episode in which the Man from Hope stands alone. It is his recent attempt to claim executive privilege for counselors Bruce Lindsey and Sidney Blumenthal, and first lady Hillary Rodham Clinton.\ \ \ Clinton can’t blame his lawyers for this feint. He alone can assert the privilege. It is almost impossible to think of this as anything but a tactic to delay independent counsel Kenneth Starr long enough for James Carville and other red-ant assailants to nibble at Starr and pump more venom into the political system.\ \ \ Consider the key issues:\ \ \ — Is the first lady subject to privilege? The White House argued during the health-care debacle that Mrs. Clinton was not a “special government employee,” but was just an outsider with superhuman endowments of civic virtue.\ \ \ But a president can’t use privilege to shield someone who doesn’t work for him, so the White House must have reversed itself and declared Mrs. Clinton a bona fide official. But that’s against the law. The “Kennedy rule,” drafted after Robert Kennedy served as his brother’s attorney general, prohibits presidents from hiring relatives in top positions.\ \ \ Hillary Rodham Clinton may be stronger and more influential today than ever before. This still isn’t good enough to qualify her as a candidate for coverage by executive privilege.\ \ \ — What kinds of conversations does executive privilege protect?\ \ \ The courts have said a president generally can shield communications that reveal fundamental deliberative processes. This includes communications among aides as they develop recommendations for their boss.\ \ \ But protected conversations involve predictable categories: military, diplomatic or national security secrets or law-enforcement activities. Jurists have not yet found a constitutional writ for protecting damage-control meetings involving allegations of infidelity. So unless Monica were secretly advising the president on nuclear proliferation or the tobacco deal, the assertion of privilege seems highly suspect.\ \ \ — What are the limits on privilege?\ \ \ Earlier in this administration, former White House Legal Counsel Lloyd Cutler decreed that the White House would never assert privilege in the face of a criminal investigation. He was merely reiterating long-standing executive-branch policy along those lines. President Reagan didn’t invoke privilege in Iran-Contra and neither did President Bush.\ \ \ But precedent is gone, and Clinton wants to protect conversations about a chubby intern from Hollywood. In so doing, he becomes the first president since Nixon to use executive privilege in a criminal inquiry.\ \ \ Evidently, Clinton wants to shield virtually any communications that take place within the White House compound on the theory that all such talk contributes in some way, shape or form to the continuing success and harmony of an administration. Taken to its logical extreme, that position would make it impossible for citizens to hold a chief executive accountable for anything. He would have a constitutional right to cover up.\ \ \ Chances are, the courts will hurl this claim out, but it will take time. Several years ago, Stanley Brand, a former general counsel for the House of Representatives, noted that “if you allow me to set foot into federal district court to litigate a claim of privilege (in a civil case) I will be there for at least three years.”\ \ \ One gets the impression that Team Clinton values its survival more than most people want justice, and thus will delay without qualm. But most of us want no part of a president who is cynical enough to use the majesty of his office to evade the one thing he is sworn to uphold — the rule of law.\ \ — Jon Ward, White House correspondent, The Washington Times