Saying "absolutely no one is above the law," independent counsel Kenneth Starr on Friday implicitly compared his legal battle with President Clinton over executive privilege to the Watergate fight President Richard Nixon lost shortly before resigning in 1974.
Although a president has an understandable interest in protecting the confidentiality of his White House, Starr said such a privilege "must give way" and evidence must be turned over to prosecutors if it is relevant to a criminal investigation.
Starr did not directly address his dispute with Clinton over testimony in the Monica Lewinsky matter, but instead used a bar association address to trace the history of executive privilege and, by inference, voice publicly for the first time the argument he has used in sealed court proceedings as he seeks to question senior Clinton aides.
He left little doubt that he had the current issue in mind as he cited the words of Watergate prosecutor Leon Jaworski. "Watergate had taught the nation two valuable lessons, lessons that are especially appropriate for us to recall on Law Day," Starr said in San Antonio.
"First, Mr. Jaworski said, our Constitution works. And second, he wrote, no one, absolutely no one, is above the law."
Starr's remarks came as an unmistakable rejoinder to Clinton, who Thursday characterized the investigation as the work of political enemies out to bring him down because they could not win in the electoral arena. While couched in indirect language, the collective comments during the past two days amounted to an unusual coded conversation between the president and the prosecutor.
They also exposed for public consumption a debate over the limits of White House secrecy that, until now, has played itself out in secret. Clinton has never said he has invoked executive privilege to protect advisers, although during his news conference he effectively acknowledged doing so.
But even some of Clinton's advisers acknowledge that the secrecy shrouding the fight has worked to his political advantage, minimizing news coverage and therefore dampening the comparisons to Nixon they had feared. For that reason, Starr's speech rankled.
"He's trying to bring in the ghosts of Watergate and Richard Nixon," said one Clinton aide.
The executive privilege dispute arose when Starr tried to question White House deputy counsel Bruce Lindsey and communications adviser Sidney Blumenthal about certain discussions concerning the Lewinsky investigation. Chief U.S. District Judge Norma Holloway Johnson has yet to rule or release edited transcripts of the legal arguments.
While he reviewed the history of executive privilege back to George Washington, Starr devoted much of his half-hour talk to the Nixon case, noting that it was 24 years ago Friday that the president's attorneys cited executive privilege to avoid turning over secret tapes of 64 White House conversations. Nixon ultimately lost when the Supreme Court found that the privilege was outweighed by the prosecutors' "need for evidence." The information on the tapes prompted Nixon to resign two weeks later.
"Where the president asserts merely a generalized interest in confidentiality, the privilege must give way to what the court called "the fair administration of criminal justice,' " Starr said. "If the evidence is relevant to a criminal investigation or prosecution, it must be turned over."
The White House welcomed Starr's recognition that executive privilege serves a useful function. "Our view is consistent with that of the courts and Mr. Starr, who acknowledges the need for confidential communications and the need to balance that with the legitimate interests of the judicial branch," said spokesman James Kennedy.
But administration officials also said Starr misinterpreted the law by ignoring an appeals court ruling last year in the case against former Agriculture Secretary Mike Espy. Under that decision, Clinton advisers said, prosecutors must do more than simply show that evidence is relevant to override executive privilege; they also must demonstrate that it is important to their case and unavailable through other means.
Starr's office responded, saying the White House interpretation was "false and misleading" because it presumes the appeals case supersedes the Supreme Court in U.S. v. Nixon. Even so, prosecutors added, the Espy decision limited privilege to "official government matters," apparently implying that the Lewinsky discussions would not qualify.