Executive Power and Governmental Attorney-Client Privilege: The Clinton Legacy

Abstract

President Clinton - who at times seemed destined to leave only disrepute in his wake - may actually have strengthened the office of the presidency. Although his administration lost an important pair of cases involving attorney-client privilege for government lawyers (as well as a case in which the administration sought recognition for a presidential body guard privilege), those losses are likely to have little enduring significance. Precisely because of the legal battering that the Clinton administration suffered at the hands of various Independent Counsel, that statutory device lost the political support that had kept it alive for many years. And with the demise of that statute, future Presidents should seldom if ever be faced with grand jury subpoenas from government officials purporting to represent the United States. Even if such circumstances do arise again - as they did for President Nixon even before the Independent Counsel statute came into being - future Presidents will have their hands greatly strengthened by the D.C. Circuit's expansive new exposition of executive privilege. That constitutional privilege will serve many of the same purposes that would have been served by the common law attorney-client privilege, and much more besides. Perhaps most important, the D.C. Circuit decision that gave the Clinton Administration one of its few legal victories will be available to future Presidents who seek to resist congressional investigations, perhaps as early as the pending litigation between Vice President Cheney and the Comptroller General. To the extent that Congress poses a greater threat than the judiciary to the legitimate interests of the Presidency, this may be among President Clinton's greatest legacies to the office he once held.

Keywords: constitutional law, executive privilege, attorney-client privilege, legal ethics

JEL Classification: H11, K10, K19, K41, K49