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Lawyers are the original practitioners of spin, and it is important, in considering legal disputes that become public issues, to recognize that their theoretical arguments are not necessarily accurate reflections of reality.
The courts, through long experience, are better at this than the press and public — which is why they have generally been dismissive of the Clinton Administration’s recent privilege claims. The White House position on attorney-client privilege is a case in point. When the Court of Appeals in Washington decided this week that Bruce Lindsey, the deputy White House counsel, would have to testify to Kenneth Starr’s grand jury, the White House said that “the practical result of the Court’s decision is that the President and all other Government officials will be less likely to receive full and frank advice about their official obligations and duties from Government attorneys.” Really?
This statement must be read on two levels — the legal and the political. As a legal matter, it is virtually meaningless in the context in which it was advanced. The real issue in the case was whether a Government official could claim attorney-client privilege when he consulted a Government lawyer on personal matters clearly outside his official duties — in this case, an investigation of the official’s possible crimes. The White House statement says that because of the Court’s decision, Government officials will be less likely to receive frank advice “about their official obligations.” In other words, the statement simply misses — or slides by — the point.
But the statement should also be read on the political level. Here, it sought to put a favorable gloss on the President’s position by suggesting that in this case he was just like any other Government official. The denial of his privilege to consult Government counsel, it was argued, will have adverse consequences for all other officials, including future Presidents.
With the President’s agreement to testify, the Starr inquiry now seems to be nearing a conclusion, and whatever the outcome, historians and others will begin to assess the costs and benefits of investigating a President. Should we be concerned that this case will deprive future officials of the advice they need from Government counsel?
The answer is no. Although there is undoubtedly a theoretical basis for a Government official to forbid disclosure by his Government counsel, it is honored far more often in the breach than in the observance. Indeed, where it really might count, the privilege is generally ignored or waived.
Let’s take the classic case. An official is confronted with an ambiguous statute. (The statute is ambiguous, of course, because Congress was sharply divided on the issue.) The official calls in his Government lawyer, who reads the statute and legislative history (if any) and provides his client with several alternative courses of action, each of which would be reasonable.
The official chooses one. Opponents in Congress call a hearing. They summon the lawyer. “What did you advise the official, and why did you so advise?” Congress asks. This is the strongest case for an attorney-client privilege: the official’s position will be weakened if Congress and private litigants learn that the official’s own lawyer saw three other ways he could have interpreted his mandate. Yet the privilege is almost never invoked in this context. Congress gets its way.
Does this mean that officials will never consult Government lawyers? Of course not. All officials and all Government lawyers know perfectly well that the lawyer’s advice is not immune from disclosure. The advice is given anyway; if the matter is controversial enough, disclosure occurs — either through a Congressional hearing or a press leak — the official defends himself as best he can, and life in a democracy goes on.
In the White House especially, expectations of confidentiality are unrealistic, and assertions concerning such expectations are disingenuous. There is much reward in leaking to the press, and it goes on continuously. If the President is lonely and isolated, it is because his private words have such value, not because he can’t speak to his lawyers.
When I was White House counsel under President Ronald Reagan, decisions at meetings were leaked so fast it sometimes seemed as though I had press calls seeking comment by the time I returned to my office. It would have been naive in the extreme to think legal advice would be exempt.
Incidentally, when the Iran-contra controversy arose, President Reagan wisely waived all privileges. In all the posturing about the “principles” at stake in the Clinton position, no one has bothered to point out that the attorney-client and executive privileges are routinely waived by Presidents, that a waiver is an affirmation that the privilege actually exists, and that despite these waivers no court has asserted that any of these privileges has been abandoned. In other words, there was no compelling need for the President to assert these privileges to preserve them for future Presidents. Any statements to the contrary are simply more spinning of legal concepts to mislead nonlawyers.
And, finally, the Clinton case is virtually in a class by itself. The President is being investigated for possible crimes that would clearly not have been within his official duties. Few Presidents have been investigated for the commission of crimes, and few if any will be in the future. The claim that the President’s use of Government counsel for personal purposes should be shielded because disclosure would diminish the privileges of Government officials who are actually carrying on official duties has the look (and other attributes) of a red herring.
Peter J. Wallison is a resident fellow at AEI.
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