February 22, 2006

The Offense of the President's Defense

I wrote this in April of 1998

Independent Counsel Kenneth Starr is presently investigating, among other matters, allegations that President Clinton committed perjury, suborned perjury, intimidated witnesses and obstructed justice in the course of a civil lawsuit. The President’s defenders have declared in response that the president is not beneath the law and has the same rights as all other American citizens. Using this premise as a springboard the Clinton team has maligned the investigation, impugned the integrity of the investigators, and trivialized the offenses being investigated. The view of the President's defenders is that President Clinton has the right to defend himself in the same manner as any other American citizen who might be the target of a criminal investigation.

This premise has superficial appeal and has gone unchallenged, but it is wrong. Although citizen Bill Clinton has precisely the same rights and duties as every other American citizen, President Bill Clinton does not. As president he has special rights and duties, including unique limits on the manner in which he may legitimately defend his personal interests.

One of the special rights afforded the president is executive privilege, which provides protection against disclosure of communications between the president and his senior aides in matters of national significance. As the head of the executive branch of government only the president can assert executive privilege. This privilege is not available to any other American citizen.

Another presidential right is temporary criminal immunity. All citizens except the president are subject to criminal prosecution. Even if there is overwhelming evidence that President Clinton committed crimes he cannot be prosecuted because he is shielded by his office. Only when President Clinton loses his presidential status, through impeachment or otherwise, can he be prosecuted. At that point Mr. Clinton would be the same under the law as everyone else, but as president he is afforded unique legal rights.

With rights come duties, and one of the primary duties of the president is to honor our system of justice. But despite this constraint, the major thrust of President Clinton's defense strategy has been an effort to de-legitimize Mr. Starr’s grand jury inquiry so that the public will lose confidence in the legal process and the results of the investigation. This effort is wrong because Mr. Starr is functioning under the authority of law, a law signed by President Clinton. If President Clinton actually believes that Mr. Starr is acting improperly there is a removal process provided in the law which the President is duty-bound to follow. It is not an acceptable substitute to denigrate the investigation and the investigators.

The damage from presidential attacks on the integrity of a federal criminal probe is profound, and is not limited to Mr. Starr’s investigation. Despite protestations that the criticism is tailored to Mr. Starr’s inquiry, there is inevitable collateral damage to the overall Federal system of criminal justice. The President surely knows, for example, that many of the tactics his defenders vilify when used by the Independent Counsel are routine practices in the Justice Department. The President also likely knows that the charges against the investigators are untrue or otherwise irrelevant to his guilt. Yet in the pursuit of purely personal goals President Clinton is willing to sacrifice respect for the branch of government he heads.

The systemic damage from the President’s defense is not limited to the criminal justice system either. The President’s defenders argue that perjury in civil cases is misconduct unworthy of prosecution, or even investigation. This position strikes at the heart of the American justice system, which is wholly dependent upon the integrity of its witnesses. It is shocking that the head of the executive branch would trivialize an offense that subverts the essential mechanism of the legal machinery. In doing so President Clinton has proven himself willing to sacrifice the integrity of the judicial process for his own political and legal expediency.

The president has obligations to the American public and to the administration of justice that transcend his private interests. When his personal rights conflict with his official duties his personal rights must yield. These constraints on the president’s private rights do not render him defenseless, but deprive him of those defenses that might adversely affect the administration of justice. The president cannot, for example, attempt to undermine a Federal investigation by demonizing investigatory practices, attacking the integrity of the investigators, and belittling the charges.

When Bill Clinton is no longer president he can behave like an ordinary criminal defendant. While he is president he must honor his office.


Blogger Michael van der Galien said...

Hey man,

I read Greenwalds blog on a daily basis and I had a question I wanted to ask: you and some other people said a couple of times people like 'bart' and 'guadlaya' (however it's spelled) get paid by the Rep. Party. The question being: Do they really use tactics like that ánd how do you know?

9:55 AM  

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