President Donald Trump has repeatedly said that his administration is the “most transparent in history,” and that it has “cooperated totally” with Special Counsel Robert Mueller’s investigation, or words to that effect. But the truth is quite the opposite. No prior administration has pushed the envelope of the law to deflect outside scrutiny to the same degree as this one. In a recent letter from the White House to the chairman of the House Judiciary Committee, the president, in effect, rejected the entire notion of congressional oversight as illegitimately political: “Congressional investigations are intended to obtain information to aid in evaluating potential legislation, not to harass political opponents or to pursue an unauthorized ‘do-over’ of exhaustive law enforcement investigations conducted by the Department of Justice.”
By contrast, prior presidents understood that respect for the rule of law means, in the end, complying with the law, no matter what the cost. That was true even of those under investigation, such as President Bill Clinton. And I should know—I was a member of the team led by Independent Counsel Ken Starr that investigated him.
Clinton was far from a willing participant in his own investigation. He resisted in multiple ways. But he was constrained by an appreciation for the rule of law, even as he was trying to evade its consequences.
Consider, by way of example and comparison, Clinton’s use of executive privilege—a privilege that Trump has also invoked in recent days to frustrate the House’s effort to get the unredacted version of the Mueller report. Just what is executive privilege, and why do we have it?
Broadly speaking, the idea behind executive privilege is that we want the advice that senior officials give the president—which often involves matters of national security and domestic prosperity, and is of crucial importance to the nation—to be candid and complete. It hardly seems plausible that a president could do his or her job and fulfill constitutional obligations without the candid advice of senior advisers. Protecting the confidentiality of these conversations may foster more open communication and lead, in the end, to better results.
And so, executive privilege extends not just to the legal advice that the president receives but, at least in theory, to all of the many communications that take place within the executive branch that are intended to develop policy for the benefit of the president. As the Supreme Court said in United States v. Nixon while reviewing President Richard Nixon’s claim of privilege, there is a “valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties.”
But it is abundantly clear that executive privilege (in all of its forms) is not absolute. That’s why Nixon ultimately lost his effort to prevent disclosure of the tapes he had made of conversations in the White House. Nixon asserted that the confidential nature of the conversations made all of them privileged against disclosure. The Court, however, rejected Nixon’s extreme reading that he had an absolute power to withhold the tapes:
To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of “a workable government” and gravely impair the role of the courts under Article III.
And, one might add, it might also impair the role of Congress under Article I—as reflected in today’s debates between the president and the House of Representatives.
In effect, the Court created a balancing test: The more significant the investigative interest, the greater the likelihood that privilege will yield. In Nixon, a criminal investigation was seen as a high-value investigative interest. Today a congressional inquiry into presidential misconduct would be as well.
Perhaps more importantly, a privilege like executive privilege is designed to serve the public good. When a president uses the privilege to help himself and conceal his own misconduct, he is abusing his power.
Starr said as much in his report to Congress. He argued that there was “substantial and credible information” that Clinton’s repeated and unlawful invocation of executive privilege was inconsistent with his duty to faithfully execute the laws of the United States and constituted potential grounds for impeachment. Starr was echoing the history of Watergate. In 1974, when the House Judiciary Committee drafted articles of impeachment for the House to consider, the third article adopted recommended impeachment on the grounds that the president had refused to comply with lawful subpoenas from Congress, in part through the wrongful invocation of executive privilege. Starr’s report to Congress argued that Clinton had acted similarly, albeit with respect to a criminal investigation rather than a congressional one.
The Starr Report recounts a history that also echoes recent events. It recalls Clinton’s promise on public TV that he would “cooperate fully” with the investigation into his contacts with Monica Lewinsky. In 1994, Lloyd Cutler, then the White House counsel, issued a directive that the Clinton administration not invoke executive privilege in cases involving allegations of personal wrongdoing.
In the end, however, those promises were unavailing. During the course of the Lewinsky investigation, Clinton invoked the presidential-communications version of executive privilege and the governmental attorney-client version of the privilege with respect to five witnesses: Bruce Lindsey, Cheryl Mills, Nancy Hernreich, Sidney Blumenthal, and Lanny Breuer.
He withdrew one claim before litigation and lost the remaining claims in a ruling by the district court. The breadth of the claims of executive privilege was, in some cases, striking. For example, Mills (who was at the time a deputy White House counsel) not only claimed privilege over internal communications with the president and other senior staff but also asserted that her communications with the president’s private lawyers (who, of course, are not part of the executive branch) were protected by the presidential privilege.
Even more ambitiously (if that is the proper word), Clinton attempted to create a new form of executive privilege. He authorized the assertion of a “protective function” privilege that would have permitted Secret Service agents to refuse to testify before a grand jury as to their observations of behavior that was the subject of a criminal investigation. The reasoning was (echoing the confidentiality argument that undergirds executive privilege) that if agents could be called to testify, then a president would push the agents away, increasing his personal risk.
The courts had little trouble concluding that Secret Service agents had no such privilege. As one district judge wrote:
In the end, the policy arguments advanced by the Secret Service are not strong enough to overcome the grand jury’s substantial interest in obtaining evidence of crimes or to cause this court to create a new testimonial privilege. Given this and the absence of legal support for the asserted privilege, this court will not establish a protective function privilege [against giving testimony].
The effort to create a sort of loyal Praetorian Guard was, thus, unavailing.
In short, the Clinton experience teaches us that the invocation of executive privilege can be the refuge of a president who is concealing misconduct. It is frequently asserted in an overbroad manner as a way of thwarting or delaying an inquiry. Perhaps we can all agree that, when used in that manner, the invocation is both ill-founded legally and contrary to basic principles of the rule of law that demand the accountability of the president for his or her actions.
Today we face a situation with many echoes from that earlier time. Trump, like Clinton before him, has sought to erect executive privilege and other claims of immunity from inquiry as a barrier to oversight of his own conduct. Three overarching considerations make clear that the president’s wholesale invocation of privilege is, in a number of ways, more severe and extreme than that of Clinton before him.
First, Trump’s actions do not occur in a vacuum, nor is the public required to ignore the context in which they arise. The president has publicly declared his intent to resist all congressional inquiries through a variety of means. By one count, he is currently defying as many as 20 different efforts to examine his conduct. Not all of these involve executive privilege. And perhaps some of these invocations of privilege and refusals to assist congressional investigation are well justified. But the pattern of resistance is such that we should evaluate the president’s actions against that background and, rightly, conclude that much of the president’s resistance is undertaken in bad faith in an attempt to avoid, or at a minimum delay, scrutiny of his conduct.
Clinton, by contrast, struggle though he might have done to avoid scrutiny of his personal conduct, never went to the same extremes as Trump. Clinton never sued private citizens to try to stop them from responding to congressional subpoenas. Clinton never refused to release his tax returns. Unlike Trump, Clinton eventually testified to Starr (albeit very reluctantly) because he knew he had to. And none of his family ever invoked the Fifth Amendment privilege against self-incrimination.
Second, Attorney General William Barr’s formal determination that the president has not committed any crimes and his public exoneration of Trump from any criminal wrongdoing have the effect of reducing, if not eliminating, much of the executive interest in the confidentiality of law-enforcement information that Trump continues to try to conceal. As the Office of Legal Counsel has noted:
Once an investigation has been closed without further prosecution, many of the considerations previously discussed lose some of their force. Access by Congress to details of closed investigations does not pose as substantial a risk that Congress will be a partner in the investigation and prosecution or will otherwise seek to influence the outcome of the prosecution; likewise, if no prosecution will result, concerns about the effects of undue pretrial publicity on a jury would disappear.
And so, the attorney general’s decision to close the criminal investigation of the president further weakens the executive claim of privilege.
Finally, on policy grounds, it is abundantly clear that however weak Clinton’s invocation of the privilege was (and I think it was not well founded), it was systematically stronger than that of President Trump today. To begin with, however ill-founded the claims might have been, Clinton’s privilege invocation was related to core presidential communications between him and his immediate advisers—a type of claim that merits a higher degree of protection. By contrast, Trump’s invocation has wandered much further afield, to include the protection of law-enforcement information and even the personal privacy of nonexecutive individuals.
More importantly, Clinton’s invocation was related to his own personal conduct with an intern. Those were events that, while significant, were of little systematic import to the nation, and thus, arguably, of less importance to Congress. By contrast, the investigation of Russian interference in our elections that is at the bottom of the special counsel’s investigation is a crucial matter for the nation, and so Congress has greater justification for inquiring into the matter.
In short, Clinton’s efforts to resist a review of his actions—efforts which were, in my judgment, properly rejected—were on a stronger footing than Trump’s efforts to evade congressional oversight today.
One anecdote from the investigation of Clinton’s assignation with Lewinsky shows how, even in his most desperate moments, Clinton understood that norms of lawful behavior applied to himself. One of his close advisers, Paul Begala, recently told me that even Clinton, whose efforts to avoid responsibility for his actions were, at times, almost laughable in their extremity, understood that in the end, the rule of law must prevail.
You may consider Begala’s characterization as somewhat self-serving, but the evidence from the denouement of the investigation, in the summer of 1998, supports his claim. The Starr investigation had been circling Clinton for months. Toward the end the investigation, Starr got a dress from Lewinsky that she had saved—and he wanted a DNA sample from Clinton to match to stains on the dress.
And so it came to pass, in a rather remarkable turn of events, that Clinton sat still one evening while the White House physician drew his blood, in the presence of an FBI agent and a prosecutor from Starr’s office. Imagine how that must have looked and felt from Clinton’s perspective—his very own blood being taken. And Clinton must have understood—he simply must have—that the blood would prove the connection to Lewinsky, in effect condemning him from his own body. And yet he sat there and did it. He didn’t refuse—and Begala says he never considered it—even though, from his perspective, it may well have meant the end of his presidency.
Clinton gave his blood. Not willingly, but he gave it nonetheless. Why? We can’t ever know for sure, but in some sense, it must have reflected a commitment to following the rules, even when they hurt.
In the meantime, don’t accept the argument that “Trump is cooperative.” Call me when he gives blood.
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