Sue Hartigan <[EMAIL PROTECTED]> writes: Excerpts From Starr's Address > Excerpts from Whitewater Independent Counsel Kenneth > Starr's address Friday to the San Antonio Bar > Association: > > As the Supreme Court said in United States vs. Nixon, a > decision that I'll say more about shortly, the public > has a right to every man's -- we would, of course, say > man and woman's -- evidence, except for those persons > protected by a constitutional, statutory or common-law > privilege. A witness is free to talk about what happens > before the grand jury; indeed, to hold a news > conference on the courthouse steps, and to repeat his > or her testimony before the television cameras, as some > choose to do. > > But jurors and prosecutors cannot disclose matters > occurring before the grand jury. So, I will not say > anything about the grand jury's investigation. That > obligation of confidentiality is a serious and solemn > one on our part, imposed by law to protect the > reputation and the dignity of individuals summoned to > appear. > > ------ > > Executive privilege, although no one used that > terminology then, first rose around that same time -- > at the founding of the republic, as part of the give > and take between the legislative branch and the > executive branch. > > In 1792, the House of Representatives sought documents > related to military matters. President Washington > convened his Cabinet to decide: How should we respond > to Congress's request? > > Cabinet officers agreed that the House could > appropriately conduct investigations and that it could > call for papers from the president of the United > States. But whether in fact, to accede to such request > would be up to the president. > > In the words of then-Cabinet member Thomas Jefferson, > secretary of state, ``The executive ought to > communicate such papers as the public good would > permit, and ought to refuse those the disclosure of > which would injure the public.'' > > ------ > > Now, for some time, as we know from history, President > Jefferson had thought that Chief Justice Marshall was > getting a bit highhanded. At one point, Jefferson told > the United States attorney who was prosecuting Aaron > Burr, ``Stop citing Marbury vs. Madison as authority.'' > Has a contemporary ring to it, doesn't it? The words of > Mr. Jefferson. > > Remember when he dined alone -- ``I have long wished > for a proper occasion to have the gratuitous opinion'' > -- this is Marbury vs. Madison he's talking about -- > ``the gratuitous opinion in that case brought before > the public and denounced as not law.'' > > Even Mr. Jefferson the genius could be wrong. > > Nonetheless, the president sent the documents to the > prosecutor. He wanted, President Jefferson later wrote, > his words, ``to avoid conflicts of authority between > the high branches of government which would discredit > (the government) it equally at home and abroad.'' > > Mr. Jefferson believed that presidents are free to hold > back documents from Congress, but when it came to the > courts, he was reluctant to provoke a confrontation. > > ------ > > In the end, Chief Justice Marshall's series of rulings > established three important principles. First, a > president is subject to a subpoena in the proper > circumstances. He is not above the law. Second, the > decision to withhold subpoenaed information or > documents must be made by the courts, and not > unilaterally by the president. And third, only the > president can assert executive privilege. > > ------ > > President Eisenhower, interestingly enough, set a > record by invoking executive privilege against > congressional committees more than 40 times during his > eight-year tenure. > > But no 20th century president tested executive > privilege in court until President Nixon, in what came > to be known as Watergate. Then, as with the Burr > prosecution, executive privilege reached the courts > several times. > > ------ > > Following Chief Justice Marshall's admonition, the > president asserted the privilege himself by letter to > Chief Judge John Sirica. > > For the White House to comply with the subpoena, the > president wrote in his letter, would be inconsistent > with the public interest and with the constitutional > position of the presidency. And so he was respectfully > declining to do so. > > In legal briefs, the president argued to ignore > subpoenas under executive privilege. He argued in fact > that his assertion of executive privilege ended the > matter. For a court even to review it would > impermissibly trample on executive authority. > > Judge Sirica saw it differently. He wrote, ``In all > candor, the court fails to perceive any reason for > suspending the power of courts to get evidence and to > rule on questions of privilege in criminal matters > simply because it is the president of the United States > who holds the evidence.'' > > Even so, Judge Sirica concluded that executive > privilege does exist, and it does protect the privacy > of presidential deliberations. > > ------ > > The (Supreme Court -- in United States vs. Nixon) ruled > just as Judge Sirica had, that invocations of executive > privilege are reviewable by the courts. While the > courts must defer substantially to the president, > presidential respect, the task of demarcating the > boundaries of the privilege, any privilege, is a matter > for the judiciary. > > Recalling the words of Chief Justice Marshall: ``It is > emphatically the province of the judicial department to > say what the law is.'' These are the words of the > court: > > ``Privileges are designed to protect weighty and > legitimate competing interests. These interests are > recognized in law by privileges against forced > disclosure established in the Constitution by statute > or at common law. Whatever their origins, these > exceptions to the demand for every man's evidence are > not lightly created nor expansively construed, for they > are in derogation of the search for truth.'' > > Truth. > > As for executive privilege in particular, the court > acknowledged that presidents need confidential advice. > But, the justices said, the courts need evidence. > > ------ > > President Nixon did not choose the Jacksonian path of > defiance. By obeying the Supreme Court of the United > States and turning over the tapes, he acknowledged and > he reinforced the primacy of what we honor here today: > the rule of law in our constitutional system. -- Two rules in life: 1. Don't tell people everything you know. 2. Subscribe/Unsubscribe, email: [EMAIL PROTECTED] In the body of the message enter: subscribe/unsubscribe law-issues
