Clinton's Legal Setbacks Tip Balance Of Power To Congress
Starr Power: What the Probe Means for the Presidency
By Dan Carney, CQ Staff Writer
(CQ, Aug. 15) -- As President Clinton prepared for his scheduled Aug. 17 grand jury testimony about his relationship with Monica S. Lewinsky, the nation and Congress were beginning to focus on the implications of possible impeachment hearings.
The outcome could be dramatic. But the commotion surrounding this long-anticipated constitutional crisis disguises the remarkable changes that have already occurred in our system of government as a result of the Clinton investigation.
The United States, many consititutional experts are concluding, now has a somewhat different from of government than it did when Independent Counsel Kenneth W. Starr embarked on his investigation four years ago. Power has been shifted away from the presidency to the Congress, the authority of presidents over the executive branch has been lessened and new areas of case law have been created where negotiations and Founding Fathers' precepts of checks and balances were sufficient before.
This spring and summer, courts in Washington and Arkansas have adjudicated questions of executive privilege, attorney-client privilege and "protective function" privilege involving the president's bodyguards. The loser in almost all of these rulings has been Clinton; the winner has been Starr.
The rulings were triggered by subpoenas not from a congressional committee but from Starr's grand juries. But if history is any guide, they will have a significant impact on the relationship between the executive and legislative branches.
While searching for Clinton's vulnerabilities in the course of the investigation, Starr has, in essence, found the vulnerabilities of the presidency that can be exploited by the Congress.
The Supreme Court's first, and only, significant foray into the area of executive privilege, United States v. Nixon, not only forced the release of secret White House tapes in the Watergate case, it emboldened future Congresses to issue subpoenas to future administrations. The most recent rulings are expected to stimulate a similar response.
"Rulings against the president like these are catnip to congressional investigators," said Charles Tiefer, law professor at the University of Baltimore and a former Democratic House counsel. "Their claws will be out to play with a weakened presidential mouse."
Regardless of whether the fault for this turn of events belongs to Starr himself, to the independent counsel statute (PL 103-270) or to a recalcitrant president -- an issue that is hotly disputed among lawyers and partisans -- there is widespread agreement that this is not a healthy development. It has occurred without debate or forethought.
"So much of this is terra incognita," said A.E. Dick Howard, law professor at the University of Virginia. "We're creating all this precedent, and clumsily, I'm afraid."
"This is certainly going to have a long-term impact," said Theodore B. Olson, a senior Justice Department official under President Ronald Reagan.
Seeing Silver Lining
To be sure, some conservatives see a silver lining in the president's troubles -- one with implications that go far beyond the immediate future of the Clinton presidency.
Presidents in general have grown too powerful, and we expect too much out of them, says Robert H. Bork, former appellate judge, Supreme Court nominee and Nixon administration official, whose firing of special prosecutor Archibald Cox in 1973 was cited by Democrats as the rationale for creating independent counsels in 1978.
Bork said the country would be well- served by a president more along the lines of what the late Sen. Paul Tsongas, D-Mass. (1979-1985) proposed during his 1992 presidential bid. When asked how he was going to solve the nation's problems, he often admonished people that he was neither a father figure nor a national Santa Claus.
"This begins to demystify the presidency, and I'm not sure that's all bad," Bork said.
But many presidential observers insist that an inflated presidency has hardly been a problem in the post-Watergate years. In fact, there is growing sentiment that Congress should take steps to enhance the legal privileges of the presidency in the wake of Starr's probe.
Senate Judiciary Committee Chairman Orrin G. Hatch, R-Utah, for example, plans to examine whether Congress should create by statute a protective-function privilege such as the one that the Clinton White House failed to prove in court. Other privileges will probably be examined as well.
Political Disputes and the Courts
Perhaps as important as the nature of the court rulings that brought about these changes is the mere fact that there were any rulings at all. The new precedents remove flexibility and discourage negotiated agreements, legal experts say. They create ambiguities, rigidity and the potential for further rulings. They erode something known as the "political question doctrine," a body of jurisprudence that says courts should stay out of political disputes.
In a case known as United States v. The House of Representatives of the United States, the Reagan administration sought in 1982 to clarify and bolster the doctrine of executive privilege in light of a congressional subpoena of environmental policy documents.
U.S. District Court Judge John Lewis Smith Jr. would have none of it. The case, he concluded, demanded a political accommodation rather than a new body of case law: "Courts have a duty to avoid unnecessarily deciding constitutional issues."
But 16 years later, the Starr investigation has forced the courts to do precisely what Smith was trying to avoid: rule on what privileges (exemptions from subpoenas) the president and his aides are entitled to.
Without the institution of the independent counsel, which has been enacted in four different incarnations since 1978, it is unlikely any of these issues would have been raised.
Nevertheless, the impact comes as something of a surprise to many members of Congress who favored the law. Until very recently, only a handful of conservative thinkers, such as Bork, were convinced that the independent counsel posed dangers for the presidency.
Unlike conventional prosecutors, independent counsels have unlimited resources and an easy opportunity to expand their probe in any direction they see potential wrongdoing. Independent counsels can pursue any path, as long as they bring their evidence to Congress for impeachment consideration.
Presidents are not afforded the privileges and protections that members of Congress have. Members, for instance, are protected by the "speech and debate" clause of the Constitution from prosecution or subpoenas for anything they say in official proceedings. And courts have given them wide latitude in resisting grand jury subpoenas.
Presidents are immune from civil cases connected to their official acts as president, as a result of the 1982 Nixon v. Fitzgerald ruling. And in criminal cases, presidents have been protected by their control of the branch of government that prosecutes, at the federal level at least, and by the belief among most constitutional experts that a sitting president cannot be indicted, a proposition that has never been tested.
In Starr, however, Clinton faces a prosecutor over whom he has no control, and who is not concerned by lack of precedent on whether a president can be indicted.
Furthermore, if, as anticipated, Starr's report to Congress is based on Clinton's actions in connection with Paula Jones' sexual harassment suit (whether Clinton lied under oath about his relationship with Lewinsky or encouraged others to do so), the report would be tied to the president's only traditional legal vulnerability short of impeachment -- a civil case not related to his official duties.
So far, Clinton's efforts to fend off Starr through assertions of privilege have been a dismal failure. His claims of executive privilege have gained no traction, having been rejected by U.S. District Court Judge Norma Holloway Johnson.
Executive privilege is an assertion that high officials of the executive branch need to be able to hold candid conversations -- without fear of having to divulge their content -- to do their job effectively.
Clinton has done only slightly better in the courts on attorney-client privilege, a protection recognized in common law as far back as Elizabethan England, and "protective function" privilege, something never formally articulated until Starr subpoenaed White House Secret Service agents.
The protective function privilege, and attorney-client privilege as it applies to government lawyers, have both been rejected at the appellate level. Clinton's only real victory to date has been a Supreme Court ruling that former White House aide Vincent W. Foster Jr.'s discussions with his private attorney can remain confidential after his death. The Foster issue, however, dates to an earlier part of Starr's probe and is unrelated to the Lewinsky matter.
The vulnerabilities of the presidency Starr has uncovered will surely arise again the next time there is a criminal investigation, experts say. But they quickly add that the larger impact of these court rulings will be on the president's authority over his own executive branch, and over his ability to resist subpoenas from Congress.
The United States v. Nixon ruling on executive privilege, which both defined and limited the president's executive privilege, helped spawn a generation of congressional probes into administrations. Even though the ruling's principal limitation on executive privilege pertained to providing relevant facts for criminal trials rather than congressional inquests, Tiefer argues that subsequent Congresses have gained leverage from the ruling merely by asserting that criminal misconduct is a central focus of their inquiries.
The probe of intelligence agencies by Sen. Frank Church, D-Idaho (1957-81), in the 1970s was an early example of this, he argues. Since then the practice has gained momentum. A pre-Nixon Congress probably would not have so aggressively pursued Reagan's Environmental Protection Agency administrator, Anne M. Burford, to the point of citing her for contempt of Congress when she refused to comply with a subpoena. And a pre-Nixon Congress probably would not have been in the state of perpetual conflict with the White House that has typified the last three years.
The new rulings offer Congress more avenues for taking on the president. Tiefer predicts they will encourage Congresses to dig deeper into the inner workings of the White House, demanding to know of events on an hour-by-hour, even minute-by-minute basis.
"Congressional committees used to have to build a substantial case of presidential involvement in wrongdoing before they could get much leverage on the White House," Tiefer said. "With Ken Starr's legacy, congressional committees will have a strong club with which to beat the president."
Rulings Not Questioned
Legal scholars offer relatively little criticism of the actual court rulings. The executive and protective-function privilege rulings in particular strike many experts as persuasive. But taken together, they raise serious issues.
"Each ruling may be correct," said Howard. "But it seems to me that the cumulative effect of these decisions makes it increasingly difficult for the president to operate in a separation of powers context."
In the same way, the rulings foreshadow more difficulty for the president as he tries to function within his own branch. If a president cannot count on candid advice from his advisers, legal experts say, he probably will have a harder time asserting control of the vast executive branch.
Presidents routinely use their most trusted White House advisers to imbue the federal bureaucracy with their policy objectives. They do this through centralization of the decision-making process and control of the flow of information, among other things. A ham-strung White House would presumably mean more decisions could be made further down the chain of command, sometimes by bureaucrats or officers less than sympathetic to the goals of the administration.
To some degree, Clinton could have avoided the legal downside of this investigation of the presidency by not challenging subpoenas so often. But by giving in to the demands of Starr and Congress, he has set precedents, as well.
No president has ever agreed to directly answer a prosecutor's questions in response to a subpoena, as Clinton was scheduled to do Aug. 17. No president has complied with so many congressional subpoenas -- the result of inquiries into the 1994 Whitewater land deal and many other allegations.
If presidential advisers know they can be forced to testify -- either as a result of a court order, or because a president does not have the power to stand up to a congressional subpoena -- they may be more inhibited in what they say in the future, Clinton's lawyers say.
Rulings Spawn Rigidity
Over and above the restrictive nature of the court rulings against Clinton in this case is the question of whether the country would be better off without rulings of any kind. Most legal experts argue that presidential privileges, while raised here in the context of a criminal case, are really more of a separation-of-powers issue.
As such, according to legal experts, it would have been best if they had been left undecided and constantly argued over by the legislative and executive branches as they try to advance their policy and political agendas. The court-established precedents create a kind of rigidity and a necessity for further rulings. "It was kind of unhealthy to have these things undecided," said Cass Sunstein, law professor at the University of Chicago.
Had these subpoenas been brought by a congressional committee, the courts probably would have been able to follow the example of Judge Smith and stay out. But since they were brought by a grand jury, the courts have been forced to hand down rulings formerly thought to be in the realm of the political question doctrine.
Not only is it unfortunate that the courts are being drawn into these questions, said Sunstein, but it is equally troubling that they are being pulled into such a highly charged political environment. Sunstein notes that some of the rulings have split along party lines, with the judges appointed by Democrats favoring Clinton and those appointed by Republicans forming majority opinions limiting his options.
While Sunstein is not saying the rulings are necessarily partisan, he is worried about the inferences that could be drawn from them. "You don't even want the appearance of that," he said.
Conservatives and liberals differ on who is to blame for these circumstances.
Liberals tend to blame Starr for what they consider to be an overzealous prosecution. Since he began his investigation of the Ozark Mountains land deal known as Whitewater, he has cut a fairly wide swath through Arkansas, turning upside down the lives and careers of people only remotely connected with Clinton. Yet he has turned up little or nothing to prosecute.
Only after three and a half years of looking and changing focus many times did he stumble upon a possible crime in the Paula Jones case. And even this -- possible perjury in a portion of a deposition that is not material in a civil case that has been dismissed -- strikes many critics as a something of an overreach in prosecution.
"This is horrifying conduct," said Larry Pozner, president of the National Association of Criminal Defense Lawyers, referring to the ever-widening scope of the Starr probe. "No matter what side of the aisle you sit on."
Olson and other conservatives, meanwhile, argue that the problem lies not with Starr, who is merely doing the job he was hired to do, but in Clinton's response. Olson said none of this would have happened had the Clinton White House not insisted on waging war against the independent counsel's office.
And, of course, if the evidence shows that he did have an affair with former intern Monica S. Lewinsky and did perjure himself, conservatives will be able to make the case that none of this would have happened had the president told the truth or behaved more responsibly in the first place.
Conservatives also point to a kind of moral diminution of the presidency that may be at least as important as the legal diminution since it extends well beyond official Washington.
"This whole thing is so damaging," Olson said. If Starr finds the president lied, under oath and in front of the American people, "it would be hard to explain to your children how important it is to tell the truth."
Congress Is Wary
Even members of Congress who might benefit from the legal and moral diminution of the presidency seem wary of recent developments. The House voted Aug. 6 to place new ethical guidelines on all federal prosecutors, including independent counsels, a sign that many lawmakers are growing wary of the powers of prosecutors. (CQ Weekly, p. 2176)
And when the independent counsel statute comes up next year for reauthorization, few Republicans or Democrats are likely to defend it in its current form. The main debate will be between those who want to scale it back dramatically and those who want to eliminate it outright.
For many constitutional experts, the Starr probe has been a lesson on the delicate balance between the branches of government that will be discussed for many years to come.
Howard argues that the independent counsel is the wrong institution, at the wrong time, in the wrong place. He suggests the remedies put in place to prevent a repeat of the abuses by the Nixon White House may not be what is needed today.
He makes an analogy between the independent counsel's pursuit of the president and the tendency of some military officers and diplomats who assume the current war will be like the previous one.
"There is something like that happening in the Clinton-Starr context," he said. "We remember the imperial presidency of 25 years ago. We remember an administration that was genuinely abusive of power."
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