Two weeks ago, chief judge Norma Holloway Johnson of the U.S. District Court for the District of Columbia released a large collection of documents — and her final ruling — concerning the Clinton administration’s refusal to allow testimony by Secret Service officials before Kenneth Starr’s Lewinsky-scandal grand jury. Last week, Johnson’s court released a comparable set of documents related to still-earlier litigation over testimony by White House aides Bruce Lindsey and Sidney Blumenthal. The bottom line of these cases has now been widely reported: The administration was rebuffed in each instance, and Judge Johnson ordered all the disputed witnesses to provide their evidence forthwith.
Which result, truth be told, is not particularly interesting. The administration has long claimed that various, constitutionally vital “privileges” bar certain Lewinsky-relevant testimony by federal employees. That claim has always been preposterous on its face. So it was almost a foregone conclusion that Judge Johnson, if she were correctly to apply the law, would reject it.
There is, nevertheless, one major surprise contained in the record of this litigation, a surprise that no one yet seems to have noticed. The surprise is just how tangled and precarious Bill Clinton’s legal and political situation has become. Examined in detail, and reduced to its unintended essence, the administration’s argument is now this: The president’s top aides and Secret Service agents must be excused from the Lewinsky grand jury proceedings — precisely because he is probably guilty. In motions before Judge Johnson’s court, the White House and Justice Department have all but explicitly acknowledged that Clinton did likely have sex with the intern, did likely then perjure himself about it, and has likely then, ever since, been located at the epicenter of a major obstruction of justice.
In late February, responding to subpoenas, Bruce Lindsey and Sidney Blumenthal appeared before the grand jury. Each flatly refused to answer substantive questions about Lewinsky-scandal conversations they’d had in the White House. Both asserted the “executive privilege” protections enjoyed by senior government officials when they are advising the president about his public duties. Lindsey, for his part, also invoked an absolute “attorney-client privilege” on behalf of the White House as an institution.
Again, these claims were little more than a frivolous delaying tactic, as the Office of the Independent Counsel asked Judge Johnson to acknowledge a few weeks later. Federal crimes committed to conceal adulterous fellatio are not a presidential responsibility enumerated in Article II of the Constitution, and so knowledge of such stuff cannot be withheld from government investigators on the basis of executive privilege. Nor can a federal employee advance attorney-client privilege against a federal grand-jury probe. Bruce Lindsey works for the government. The government cannot have an interest in denying itself material evidence about crimes it is attempting to prosecute. And there is not a speck of legal precedent that suggests otherwise.
But the White House, supporting the Lindsey/Blumenthal privilege assertions in Judge Johnson’s court, was at great pains to deny this clear reality. The privileges apply, according to the White House, because Monica Lewinsky is not just this particular president’s private peccadillo, but a subject of “profound impact” on the long-term “functioning of the presidency” as a whole.
When Bruce Lindsey and Sidney Blumenthal are discussing the young lady with their colleagues — and with Clinton — they are never, never scheming merely to keep the president out of jail. They are always, always considering how to prevent the Lewinsky scandal “from hampering the president’s conduct of the nation’s military and foreign policy” with respect to Iraq. Or addressing suchlike grave and portentous matters. These conversations take place “virtually every day,” we are asked to believe. And if participants in this ongoing constitutional seminar must give testimony about their super-important deliberations, the very future of the Republic will be imperiled.
How is it, then, that the White House has happily delivered so many other of its senior officials to the Lewinsky grand jury? They brag about it, even. White House counsel Charles F. C. Ruff, in a sworn declaration dated March 17, reminded Judge Johnson that innumerable West Wing staffers had either been “subpoenaed to testify” or “asked to submit voluntarily to an interview.” And “all of these individuals have cooperated” and “none has asserted privilege over any information that they possess.” Is it possible that only Bruce Lindsey and Sidney Blumenthal advise Bill Clinton about the effect of Monica Lewinsky on his constitutional obligations — and that this is all these two famously low-road individuals ever think about? Is there some other circumstance or principle that might distinguish this “privileged” duo from every last one of their West Wing co-workers?
No. The White House’s own courtroom reasoning allows only two conclusions: Either dozens of Clinton aides are covered by privilege, or none of them is. And the actual practice of the White House, its selective application of privilege in just these two instances, can mean only one thing: Bruce Lindsey and Sidney Blumenthal must know something especially damaging about Bill Clinton.
In the Secret Service litigation, the administration’s legal claims were still more fatuous, and its logic still more obviously incriminating of the president. On March 13, the Office of the Independent Counsel attempted to depose two Secret Service agents believed to have observed evidence relevant to the Lewinsky inquiry. They declined to cooperate, asserting an unqualified “protective-function privilege” and arguing that, were they forced to testify, President Clinton — and future presidents — would hold the Service at bay and therefore run a significantly increased risk of assassination. On March 23, Starr’s deputies attempted to depose the attorney for these two Secret Service agents. He, too, invoked the protective-function privilege. Starr then served subpoenas on all three men, which they resisted.
There’s a rather basic problem of law here, which Judge Johnson has now made quick work of in her ruling. There has never before in American history, recognized in any American court or statute, been any such thing as “protective-function privilege”; it is an ad hoc, Lewinsky-inspired invention of the Secret Service and its Justice Department attorneys. Nor can there be a protective-function privilege. Constitutional precedent and federal rules of evidence uniformly prohibit judges from recognizing testimonial privileges that defy congressionally enacted legislation. And Congress decades ago passed a law obliging all federal employees promptly to report evidence of any crime to the appropriate authorities. Federal law-enforcement officers cannot invoke some brand-new privilege to exempt themselves from testimony before a federal grand-jury investigation.
Again, though, this part is a total no-brainer. What is truly amazing about the administration’s assertion of the so-called protective-function privilege is what it implies about Bill Clinton’s loudly proclaimed innocence in the Lewinsky affair. If evidence in the possession of Secret Service agents were apt to exonerate him, then the president could only welcome it, and there would be no conceivable reason for him later to push those agents away and place himself at the mercy of an assassin. The president would withdraw from his bodyguards — and the invocation of “protective-function privilege” could be necessary — only if he had done something very wrong and the Secret Service were aware of it. It is an odd kind of legal privilege, this: one whose only logical purpose can be to protect those presidents who have probably committed serious crimes.
As, of course, this president has.
David Tell, for the Editors
