Stephen Labaton: The Law Ranks Its Privileges





THE investigation of President Clinton's link to Monica S. Lewinsky is barely a month old and it has already set a peculiar record: Most variations on the ancient legal concept of special privileges that excuse people from testifying in court and before grand juries.

Before the White House began threatening to invoke the recognized doctrines of lawyer-client privilege and executive privilege to block the testimony of top aides, other Administration lawyers were trying to craft a new bodyguard privilege to silence Secret Service agents whom investigators want to question about the President and Ms. Lewinsky.

And after Ms. Lewinksy' mother, Marcia Lewis, emerged distraught from two days of grand jury testimony, lawyers for the family suggested that there should be a mother-daughter privilege. That followed remarks by Ms. Lewinksy's lawyer, William Ginsburg, that she would invoke her Fifth Amendment right to avoid a grand jury appearance. And the initiation by Kenneth W. Starr, the independent counsel probing the case, of an inquiry into leaks to the news media prompted reporters to worry anew about whether their conversations with confidential sources can be considered privileged.

It was a remarkable turn of events considering that Mr. Clinton had suggested just four years ago that he would not wrap himself up in privileges. In March 1994, a few weeks after the appointment of the first Whitewater independent counsel, the President was asked whether he would invoke executive privilege or lawyer-client privilege in the inquiry.

''My interest in here is to get the facts out, fix the procedures for the future, get the facts out about what was known here and what happened, and cooperate with the special counsel,'' Mr. Clinton replied. ''So I can't -- it's hard for me to imagine a circumstance in which that would be an appropriate thing for me to do.''

But Mr. Clinton signaled a shift later that year when he invoked the privilege in another case, the criminal investigation of former Agriculture Secretary Mike Espy. And as the President prepares to do so again, he follows the lead of only a handful of his predecessors. ...

It was Thomas Jefferson who first invoked executive privilege to withhold a private letter from General James Wilkinson that contained accusations relevant to the treason trial of his former Vice President, Aaron Burr. In issuing a subpoena, Chief Justice John Marshall, who oversaw the trial, ruled that if the letter ''does contain any matter which it would be imprudent to disclose, which it is not the wish of the executive to disclose, such matter, if it is not immediately and essentially applicable to the point, will, of course, be suppressed.''

Burr was acquitted before Jefferson's claim was resolved, and the issue of executive privilege in criminal cases lay dormant until 1974, when it arose in Watergate. In a unanimous opinion, the Supreme Court said there was an executive privilege, but that it was a qualified one that must be weighed against the interests of a criminal investigation....


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