Every president leaves a legacy -- an intended or unintended bequest that helps or hinders his successors. Part of Bill Clinton's legacy could be a significantly diminished presidency. Whether or not he faces impeachment, Clinton's legal woes already seem to have made the institution of the presidency smaller and more vulnerable to adversaries. Sun national staff writer Lyle Denniston examines this prospect.

What would it mean, in fact, if the presidency is "diminished?"

Any whiff of scandal or wrongdoing could turn a future president's adversaries loose on aggressive investigations. These inquiries could exploit the institutional weaknesses that have developed from the court battles Clinton and his lawyers have waged and usually lost. The ability of presidents to resist determined foes has been impaired. Overall, presidents cannot expect as much confidentiality in their dealings with close advisers.

Would those investigations be conducted by independent counsels, such as Kenneth W. Starr, the special prosecutor handling the Monica Lewinsky and Whitewater matters?

Maybe not. In fact, the independent counsel law under which Starr is operating may not be extended beyond next year's scheduled expiration, mainly because of widespread criticism of Starr's investigation. Future investigations could be conducted by Congress, or by individuals who sue presidents -- as in the Paula Corbin Jones sexual misconduct case.

Are the scandals surrounding Clinton the real cause of any problems for future presidents?

No. Other presidents have been hit by scandal, and the presidency did not suffer lasting effects. The Watergate scandal actually led to creation of a president's right to claim "executive privilege" to protect White House privacy. Clinton's alleged sexual escapades themselves have not undermined the presidency. Rather, Clinton has chosen or been forced to test the legal ramparts that have long protected the presidency, and those failed efforts have eroded presidential protections.

Since the Constitution sets up three equal branches (the presidency, Congress, the courts) that check and balance each other, wouldn't the Clinton legacy be just one of those occasional shifts in the balance of power -- this time, away from the presidency?

Some might see it that way. But part of why divided government has worked so well is that the relations among the branches are not precisely defined. Accommodations and compromises must be reached to avoid constitutional crises. Clinton may be leaving behind narrow and strictly defined limits on presidential independence.

4 What is the most important of those limitations?

Probably the Supreme Court's denial of Clinton's constitutional claim, in the Jones case, that presidents should be insulated from civil lawsuits while in office. If Jones' lawsuit had been delayed, Clinton might not be facing any of his current legal problems. His lawyers' prediction that future presidents might face similar lawsuits now seems more realistic than the Supreme Court thought it was. The Supreme Court probably had no clue that the Jones case would lead to something like the Lewinsky scandal.

What other limitations will affect future presidents?

If lower-court rulings against Clinton are upheld by the Supreme Court, a president's closest and highest-level counselors in the White House will be vulnerable to demands that they testify against a president. That could put distance between them and the president. The presidential right of "executive privilege," initially gained by President Richard M. Nixon, is likely to lose much of its protective power. In addition, a "kitchen cabinet" -- outside advisers who have the ear of the chief executive -- will be vulnerable to summons as witnesses, cutting into the intimacy of their roles.

Also, White House lawyers will have less right to resist outside demands to disclose advice they gave the president. So presidents will have to turn more often to privately paid attorneys; those ties will still be shielded by attorney-client secrecy. And Secret Service agents who protect the president and White House aides who serve him could be called to testify about what they have seen and heard.

Didn't Clinton bring all of this on himself, simply by stalling and provoking fights?

Not necessarily. It is true that Clinton has a legal team that is both creative and aggressive in his defense. And they have chosen to fight rather than yield. But they have not picked all the fights: Paula Jones may have started it all by waiting to sue the president over an alleged incident that took place three years before he assumed the presidency. Starr has brought on other battles by his use of a criminal grand jury's subpoena powers to reach into the innermost core of White House operations and the president's personal conduct. Starr's subpoena seeking the president's testimony before a grand jury investigating his conduct -- which was withdrawn after Clinton agreed to testify -- was the first such subpoena of a president in history.

Why have Clinton's lawyers been so determined to fight?

They assert that both the Jones case and the Starr investigation are politically inspired, elements of what Hillary Rodham Clinton has called "a vast right-wing conspiracy." That perception has helped fuel the lawyers' impulse to fight. Besides, this no-holds-barred strategy is a trademark of Clinton's main lawyers, Robert S. Bennett and David E. Kendall. Another part of the explanation is Clinton's own refusal to submit under fire and his seemingly inexhaustible faith that he will prevail.

Will Clinton's agreement to testify under oath Monday in the Lewinsky matter further harm the presidency?

Probably not. In fact, that agreement was a compromise that avoided another court fight, over whether he could be forced to testify -- a fight he might have lost.

Is there any simple way to explain why the courts have ruled so often against Clinton's claims?

In the Jones case, the answer is that the Supreme Court underestimated the aggressiveness of Clinton's adversaries. In the other scandals surrounding Clinton, the rulings mainly have grown out of the courts' respect for the processes and needs of grand juries, and judges' distaste for interfering in a criminal prosecution. The institution that has gained the most power at the expense of the presidency is the grand jury.

Does the fact that the Jones case was dismissed by a federal judge mean anything for the future?

Not much, if anything. When that case became linked with Starr's criminal inquiry, the institutional harm to the presidency was set in motion in a way unlikely to be stopped. Even if the Jones case is not revived by a federal appeals court or the Supreme Court, the collateral damage to the presidency probably has been done.

Why won't the potential harm to the presidency simply vanish if there is no impeachment of Clinton?

Legal precedents have been set, and none bears directly on the process of congressional impeachment. The only way any of the precedents could be undone is by the Supreme Court, if Clinton's appeals go forward.

Suppose there is an impeachment and Clinton survives it. Won't that strengthen the office of the presidency?

No. The fact that Congress goes forward with impeachment charges against a president, for only the second time in history, would only add to the woes of the presidency.

Pub Date: 8/13/98