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Executive privilege argument seems flimsy

WASHINGTON - As a president whose Justice Department - especially Attorney General Edwin Meese - chattered endlessly about the need for "strict" interpretation of the Constitution, Ronald Reagan is poorly positioned to drop the veil of "executive privilege" over his diaries, even though he agreed to answer some question on video tape.This and other evidence is now sought by John Poindexter, his former national security adviser whose trial for alleged Iran-Contra offenses is set to begin Feb. 20.

The Sixth Amendment says, with painful clarity, that "In all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor." Poindexter is such an accused, and the Bill of Rights offers no exemption for former presidents.

Moreover, the Constitution mentions "executive privilege" not at all.

Case closed?

Well, not quite. If the argument raised by Poindexter's lawyers were limited to naively fundamentalist disputation about the text of the Constitution, the former president wouldn't have a leg to stand on.

His testimony would be expected routinely.

But Reagan will testify, if he testifies, for more considered and substantial reasons. The Constitution is not so crabbed a document as legal fundamentalists like to claim. It was designed not only to protect personal liberty, but to facilitate energetic and effective government, a point sometimes forgotten by ultra-libertarians. To that end, certain common-sense doctrines may be inferred, even when unnamed, from its structure.

The most basic of these doctrines, aside from federalism, is the separation of powers. When he operates within his constitutional sphere, a president is the co-equal of Congress and the courts. To govern effectively, he needs candid advice, and candor often requires the expectation of confidentiality.

If this were not allowed, Congress, acting in its capacity as "grand inquest of the nation," would be perfectly set up to expose all a president's secrets and plans and undoubtedly would do so. And soon, by this means, it would make presidents accountable vassals of the legislative branch.

That is what Congresses usually prefer - the ultimate vision of constitutional sugar plums that dance in congressional heads. But it isn't exactly what the framers had in mind.

That explains why executive privilege led a shadowy constitutional life long before it had a name, and before the Supreme Court in the Nixon tapes case of 1974 granted it qualified judicial recognition. The term itself dates back to the 1950s. It emerged from the Eisenhower administration's struggle to keep Sen. Joe McCarthy from taking control of the executive branch, and even the U.S. Army. Without executive privilege, or something like it, we would have a very different form of government.

But back to the Poindexter trial. In the Nixon case, the Supreme Court conceded the existence and need of executive privilege. But it also said that in a criminal case the courts are entitled to every man's evidence; and that this ancient requirement supersedes executive privilege. The exception is clearly applicable to the Poindexter trial, all the more so because it is a defendant, not the prosecution, who seeks the evidence.

There may be a risk that Ronald Reagan if he testifies might unintentionally spill some beans. But they would be stale beans.

Besides, by the rules of constitutional fundamentalism, a la Reagan and Meese, the plain words of the Sixth Amendment would have to prevail against a shadowy and inferred doctrine like "executive privilege," the invention of politicians and judges.

So let justice be done though the heavens fall. I, for one, do not anticipate an outcome so catastrophic.