BYPASSING the Circuit Court of Appeals, Independent Counsel Kenneth Starr has asked the Supreme Court to rule this term on whether presidential aides may be compelled to testify about what the president told them. The court ruled in 1974 that President Richard M. Nixon had some executive privilege, but not enough to keep tapes of his conversations secret, given the gravity of accusations against him.
A judge has ruled that Secret Service agents may be compelled to testify to what a president said while they were protecting his life, turning them into informants on every future president unless this is appealed and reversed.
A judge ruled that a Washington bookstore must reveal whether Monica Lewinsky bought a certain novel. If this is not appealed and reversed, book buyers are on notice that they lack privacy unless they pay cash.
An appeals court ruled that attorney-client privilege lapses when the client dies. The late Vince Foster's lawyer may be compelled to produce notes of a meeting. This possibility never occurred to most clients when confiding in their attorneys. If upheld, it will transform that relationship.
Two of these rulings involve severe impediments on the presidency. The other two would curtail the rights of citizens. Yet if the crime under investigation were sufficiently grave, the public and the law would want each of these rights infringed. A president should not be protected if he committed treason, stole billions or imported narcotics. But such protections should not be abandoned for comparative trivia.
Three of these issues concern an investigation into whether the president lied or made others lie in a matter that was not material to a lawsuit that was deemed to have no merit. While the lawsuit's dismissal is being appealed, the relevance of the investigation hangs by a thread.
There may be precedent for sexual misconduct in the Oval Office, but none for investigating it. The issue of attorney-client privilege arises in the more serious matter called Whitewater, a lengthy investigation of financial doings in Arkansas that appears played out.
With principles in conflict, each issue involves proportionality: whether the matter being investigated is worth more than the rights that would be infringed.
So in the end the Supreme Court must decide the importance to the republic of what Mr. Clinton did or did not do with Ms. Lewinsky. And what rights must be sacrificed for the need to know.
The court must decide this with a straight face and no vision of chorus lines in musical farce. Have no sympathy for the justices; they all wanted the job.
Pub Date: 5/31/98