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The president and the privilege: an attorney-client conundrum
Updated January 19, 1999
3:02 p.m. ET
(Court TV) — How do you prove the president perjured himself?
Unless a surreptitious recording emerges of President Clinton revealing all, House prosecutors have to find a way to get inside the president's head in order to establish intent.
It is, of course, a remarkably difficult task. But one privileged group of people likely has insight into Clinton's state of mind: his attorneys, who arguably know best whether or not the president intended to lie to the grand jury.
"The lawyer is a great source of evidence about his client," says Robert W. Gordon, a legal historian and ethics specialist at Yale Law School. The attorney has "unique access" and can speak to his client's "state of mind," according to Gordon, which is precisely why such communication is privileged.
But will the Senate — bound by few rules and negotiable ones at that — respect the attorney-client privilege?
While attorneys Court TV Online interviewed for this story expressed horror at the mere idea that the Senate would require Clinton's attorneys to testify against him, many also acknowledged that as far as this trial is concerned, stranger things have happened.
While the Senate has been historically more accommodating of the privilege than the House of Representatives, senators won't necessarily respect it in Clinton's case, says one Senate staffer. Like everything else in this trial, it's an open question, the staffer insists.
The Senate can subpoena anyone a majority of senators agree to subpoena — that includes the president and any, or all, of his attorneys.
Fears of a never-ending trial are in part fueled by the possibility, even the probability, of the court battles such subpoenas could entail.
For example: the House prosecutors ask to call White House Counsel Charles Ruff to the stand. Presumably a Democratic senator will object, which will occasion a vote. If party lines are followed — and the witness issue threatens to polarize senators and squash bi-partisan spirit — the Senate will approve the choice.
Senators will request Ruff's testimony, and he will presumably decline the offer. The Senate can then issue a subpoena, which Ruff might choose to ignore.
The Senate could then ask a federal court to compel Ruff to testify or hold him in civil contempt — and even jail him.
Ruff would argue attorney-client privilege and the court could rule either way. If the court rules for the Senate on the grounds that a political proceeding does not have to abide by the rules of a judicial trial, Ruff could appeal. If he loses that appeal, he could bring the fight to the Supreme Court, which will most likely choose not to review his case.
So technically Ruff loses, but these court battles would delay the Senate trial by a month or more. How would such a delay affect public opinion? Who would the public blame?
If the lower court upholds the privilege, the Senate could appeal all the way to the Supreme Court, which will most likely rule in its favor. But again, would the delay be worth it? Presumably, each witness who doesn't want to testify could drag his or her case out in the courts.
Challenging subpoenas in Senate impeachment trials is not unprecedented. In June 1989, William Borders, co-defendant in the federal criminal trial of Judge Alcee Hastings, refused to honor the Senate's subpoena during Hastings' impeachment trial. Senators asked a federal judge to grant Borders immunity from prosecution, so that he might testify. The court did, but Borders still wouldn't testify.
In August, the Senate went back to court to have Borders held in civil contempt and sanctioned. Eighteen days later, the court obliged and Borders sat out the rest of the trial in jail.
Even if senators could enforce subpoenas for Clinton's lawyers, it might prove political suicide.
The attorney-client privilege "has a kind of sacred standing in lawyers' minds," Gordon says. Not honoring it, he argues, would be "a form of sacrilege."
Abrogating the privilege is "uniquely horrible," he stresses, "unthinkable," and ultimately "politically suicidal."
Gordon says the public already perceives that Independent Counsel Kenneth Starr and House Judicary Republicans have overreacted to the president's misconduct. Calling attorneys as witnesses would, he says, confirm Congress' reputation for extreme partisanship.
One attorney with impeachment trial experience echoed Gordon's sentiments: "I don't think they would even touch doing that."
Another attorney with Senate trial experience, Terence Anderson, who defended Hastings, says, "I would be absolutely stunned if they tried to play that game."
Short of calling Clinton's lawyers, another option to establish Clinton's intentions might be to call Clinton's advisers, says Gordon. The president's aides may have access to the kind of information that lawyers would have access to — Clinton's state of mind throughout the Lewinsky scandal, for example. But calling Clinton's advisers and confidantes, such as Sidney Blumenthal, Dick Morris or Vernon Jordan, might not prompt the kind of political backlash that would likely ensue from calling the president's attorneys.
But Gordon argues that its going to be hard to get Clinton, in part, because the president has probably convinced himself that he really didn't lie.
"I think he is telling the truth," says Gordon. "His story has plausibility."
—Aldina Vazao Kennedy
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