Magazine | July 7, 2014, Issue

Checking Hillary’s Privilege

Can she be forced to answer questions about Benghazi?

From the very moment in May when the House voted, along the partisan lines typical of our age, to establish the Select Committee on the Events Surrounding the 2012 Terrorist Attack in Benghazi, chaired by Representative Trey Gowdy (R., S.C.), supporters of the Obama administration and of former secretary of state Hillary Clinton commenced an unrelenting attack on the panel’s legitimacy. At all costs, the Gowdy probe was to be denied a place in the grand lineage of major investigative congressional committees.

The first sign of this was the Democrats’ initial suggestion, unprecedented and swiftly abandoned, that they might abdicate their statutory duties under the Constitution and simply not appoint members to the duly formed panel.

Once that gambit was abandoned, the first order of business for the panel’s critics was to brand it “the Republican-controlled Benghazi committee.” This practice illustrates starkly the changes in our political culture since the Nixon era, when, as my venerable Fox News colleague Brit Hume — a veteran of Beltway journalism since 1970 — likes to point out, no reporter ever described the panel led by Senator Sam Ervin (D., N.C.) as “the Democrat-controlled Senate Watergate committee.”

Apprehension on the left about the Benghazi committee’s true objectives is not entirely without foundation, of course. A former prosecutor, Gowdy was a forceful partisan presence, sometimes to the point of stridency, in previous congressional hearings on Benghazi; and it has been widely assumed that in the next round of Benghazi hearings, the panel’s GOP members will be taking direct aim at Clinton and her 2016 presidential ambitions. This assumption is also not unfounded — but the motivations are not purely partisan.

In her last showdown with congressional Republicans on Benghazi, an eight-hour marathon of House and Senate testimony on January 23, 2013 — now reduced to the single line “What difference, at this point, does it make?” — the secretary of state handily bested her interrogators, exhibiting a lawyerly mastery of language and subject matter that enabled her to parry, with unnerving ease, their disjointed and often unintelligible queries. Sources close to the committee say Chairman Gowdy and his still-skeletal staff recognize the ways in which the Republicans tackling Benghazi over the last two years (including the chairman himself), while not without investigative accomplishments to show for themselves, sometimes impeded their own work, and are determined not to repeat those mistakes.

The select committee and its colorful chairman today issue only the blandest of statements, averring to the intended seriousness and thoroughness of their fact-finding mission. While awaiting the mandated production of documents from other investigative bodies, many still classified, the Benghazi committee’s Republicans are studying closely the 51,961 words of Clinton’s testimony, as well as the Benghazi chapter in her new memoir, and are said to see points of vulnerability therein quite apart from the secretary’s famous “what difference?” outburst to Senator Ron Johnson (R., Wis.). And the majority is preparing to use subpoena power to pursue certain evidentiary trails never followed before, some involving Clinton personally, others extending to her top State Department aides.

For her part, and despite her singular stature on the American political landscape, Clinton is now a private citizen — and as such has staked out an extraordinary legal posture. Viewed in game-theory terms, it is almost guaranteed to trigger an epic courtroom showdown over separation of powers.

In her celebrated interview with ABC News’s Diane Sawyer, Clinton was asked whether she would testify before the Benghazi committee. “We’ll see what they decide to do, how they conduct themselves,” Clinton said, adding that her determination will hinge on whether the committee appears, to her eye, to be operating “in the best tradition of the Congress” or to be engaged in the production of “one more travesty.”

Modern American history holds no precedent for a former secretary of state’s explicitly declaring that her cooperation with a select congressional committee is conditional, a function not of statutory obligation — as would be attendant on virtually all other private citizens so summoned — but rather of her subjective appraisal, to be rendered over a timeframe of unspecified duration, as to the legitimacy of the panel and its members’ conduct.

That posture hardened in Clinton’s next interview, with NBC News’s Cynthia McFadden. A Columbia Law School graduate, McFadden cannily praised the amount of detail in the Benghazi chapter of Hard Choices before asking whether Clinton kept a diary during her tenure at State. “I kept a lot of notes,” Clinton replied, her usually sound lawyerly instincts momentarily abandoning her; the rudimentary rules of cross-examination would have counseled the respondent, if she had indeed never kept a diary, simply to answer in the negative, without volunteering information about other relevant evidence in her possession.

But Clinton elected, perhaps impulsively, to observe the imperatives of the TV interview, which required more verbiage in the instant moment, rather than those of the witness chair she will likely soon inhabit. “If the committee wants your notes,” McFadden asked, “would you turn those over?” “They can read it in the book,” Clinton shot back, before retreating to her newly adopted legal posture. “Let’s see whether this [committee] is on the level or not. . . . I don’t want to be part of something which in any way politicizes or demeans the [victims’] sacrifice.”

#page#Here again Clinton asserted a novel, and almost certainly illusory, legal privilege, a Clintonian Right of Personal Review, and held it superior, in legal force, to the powers of Congress in the compulsion of relevant evidence. These assertions are all the more striking coming from a lawyer who once worked on the House Judiciary Committee, during the impeachment summer of 1974, when fairly similar claims, advanced in behalf of the inviolability of the Nixon tapes, notably failed.

Asked about Clinton’s comments, Gowdy issued another bland press release — no names, but with clear implications for the former secretary: “We need every relevant witness, document or other piece of evidence to have all the facts [emphasis added].”

With the courts unlikely to recognize a private citizen’s authority to make her own determinative findings about the legitimacy of subpoenas issued by a select House committee, Clinton’s only legal recourse would be to seek refuge in her status as a former cabinet officer. Enter the Obama White House and Kerry State Department. With their interests in closing the book on Benghazi fully congruent with Clinton’s, the administration will almost certainly have its lawyers intervene in her behalf, if not assume the lead role as litigants, in any legal clash over the respective authorities vested in the legislative and executive branches.

Would Clinton’s Benghazi notes be covered under executive privilege, as documents that formed the basis for her provision of classified, confidential, and legally protected advice to the commander-in-chief? Possibly, and the weight accorded government lawyers by the federal courts in such fact settings has often been substantial, even dispositive. The current White House counsel, W. Neil Eggleston, would know the ropes, having served as deputy chief counsel to the Iran-Contra committee and on the staff of the White House counsel’s office during the Clintons’ Todeskampf against independent counsel Kenneth Starr. But such an assertion of privilege could also result in unwelcome discovery proceedings aimed at determining the precise number, timing, length, and contents of Clinton’s discussions with President Obama about Benghazi.

Could Mrs. Clinton’s current status as a private citizen cause the courts to reject such an assertion of privilege? That, too, is possible; not surprisingly, the case law is murky, particularly where former cabinet officers are concerned. However, research shows at least 13 instances since 1975 in which cabinet-level or senior executive-branch officials have been cited for contempt for failure to provide subpoenaed documents to the House or one of its committees or subcommittees. The most recent was the citation of Attorney General Eric Holder, in the Fast and Furious case, in 2012, an instance in which the citation, to the frustration of House Republicans, did not compel production of the relevant documents.

While no savvy observer should expect today’s news media to cover the Benghazi committee with the same thoroughness and institutional reverence afforded the Watergate and Iran-Contra committees, the politics of 2016 may favor Gowdy. Any protracted legal battle over Clinton’s testimony or notes, complete with assertions of executive privilege by a White House already finding frequent comparison with Richard Nixon’s, would only fuel widespread speculation about what, if anything, the secretary was seeking to hide — especially after Clinton’s claim to McFadden that the contents of the notes can be read “in the book.” If this is true, why not release them? Such a spectacle would also threaten to revive memories of the mysterious Rose Law Firm records of Mrs. Clinton’s that were discovered, in January 1996, after nearly two years of Whitewater subpoenas, in private quarters at the White House.

Surely Clinton, who trumpets as her greatest accomplishment at Foggy Bottom the restoration of American leadership on the world stage, would prefer that 2016 be fought on higher, cleaner terrain. She told Diane Sawyer that she sees the Benghazi investigation as “really apart from — even a diversion from — the hard work that the Congress should be doing.”

Under such circumstances, Clinton could conceivably do the country — not to mention herself and her political ambitions — a favor by working to facilitate and expedite, not obstruct and delay, the work of the Benghazi committee. But the reality, as Clinton and her husband know better than anyone, is that there’s no telling what can happen once the lawyers get involved.

– Mr. Rosen is the chief Washington correspondent for Fox News and the author of The Strong Man: John Mitchell and the Secrets of Watergate.

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