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Bench Memos

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Privilege Claims



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This Washington Post story is very misleading in its downplaying privilege claims differences between the Clinton and Bush dministrations. The Clinton administration frequently misused attorney-client privilege and executive privilege to conceal evidence from criminal investigators — a matter settled by U.S. v. Nixon during Watergate and subsequently enforced against Clinton by the Eighth Circuit. (Incidentally, I find aspects of U.S. v. Nixon problematic, but that’s not relevant here.) Among other things, Clinton was trying to prevent law enforcement from questioning several of his White House staffers who were indeed government lawyers, but who were also assisting Clinton in his personal capacity in the context of a criminal investigation. (Moreover, there’s a crime-fraud exception to the privilege, which was also relevant in the Clinton case.) Clinton even tried to concoct a new privilege — the Secret Service Protective Function Privilege — which was also rejected by the courts.

The Los Angeles Times the other day attempted to make the same point as the Post, drawing a false comparison between the Clinton and Bush Administrations. Clinton was attempting to protect himself from allegations of obstruction and perjury by asserting privilege claims belonging to the executive branch; Bush is trying to protect the constitutional prerogatives of the executive branch in the same manner of most of his predecessors, bar Clinton.



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