In Today's Political World, Using 'Privilege' as Protection

When special prosecutor Archibald Cox asked for Nixon Oval Office tapes relevant to the Watergate investigation, the president balked, saying they were protected by executive privilege.

In 1974, the Supreme Court ruled that executive privilege could not be used to withhold evidence in a criminal investigation. In his memoirs, Mr. Nixon ruefully noted that he was the first president to test executive privilege in the Supreme Court. "By testing it on such weak ground," he said, he probably ensured its defeat.

When independent counsel Kenneth Starr asked for notes of Hillary Rodham Clinton's discussions with lawyers in July 1995, after the suicide of White House deputy counsel Vincent W. Foster Jr., and in January 1996, during breaks in her grand jury testimony, she argued that the notes were protected by lawyer-client privilege.

The Federal District Court agreed. The appeals court, in a 2-to-1 decision, did not. The majority noted that government-paid White House lawyers had been present at the briefings, along with Mrs. Clinton's personal lawyer. And it ruled that, by analogy with the Nixon case, lawyer-client privilege, like executive privilege, could not stand in the face of a grand jury investigation.

Where does the whole idea of "privilege" come from?

In its original dictionary meaning, "privilege" is not a legal concept but a prerogative arrogated or assumed, like the advantages of the rich and powerful. "Privileged class" is more an epithet than a legal principle.

But there are also legal privileges conferred by the Constitution or evolved by generally accepted common law and tradition. It is constitutional privilege that shields a member of Congress from being held accountable elsewhere for utterances in Congress. Executive privilege is not defined in the Constitution and, as noted, was unsuccessfully invoked by Nixon. It was, however, successfully used by President Eisenhower to resist a subpoena from Sen. Joseph McCarthy.

There are also privileges designed to protect citizens generally. The Fifth Amendment to the Constitution protects us from having to incriminate ourselves in prosecutions or congressional investigations. An unwritten series of privileges is sanctified in common law and societal consensus: doctor-patient, lawyer-client, priest-penitent.

Finally, there is First Amendment privilege, which newspeople claim but which is often denied. This is the privilege that is asserted in defense against libel suits and as protection against having to reveal confidential sources. (Of that I speak with some personal knowledge, having come close, in 1976, to being cited for contempt and possibly sent to jail for refusing to identify a source demanded by the House Ethics Committee.)

Privilege is not a static thing, but is constantly in the process of being tested. So now here's the latest big test, as Mrs. Clinton appeals to the Supreme Court to affirm that she can speak in confidence to lawyers even if they are on the public payroll and even in the face of a prosecutor's investigation.

From this case may emerge a clearer definition of what "privilege" means.

* Daniel Schorr is senior news analyst for National Public Radio.