60 Md. L. Rev. 205 (2001)
Paradise Lost: The Clinton Administration and the Erosion of Executive Privilege

handle is hein.journals/mllr60 and id is 215 raw text is: 


                            JONATHAN TuRLEY*


      In Paradise Lost, Milton once described a Serbonian Bog ...
 [w]here Armies whole have sunk.' This illusion could have easily
 been taken from the immediate aftermath of the Clinton crisis. On a
 myriad of different fronts, the Clinton defense teams advanced sweep-
 ing executive privilege arguments, only to be defeated in a series of
judicial opinions. This Serbonian Bog ultimately proved to be the
greatest factor in undoing efforts to combat inquiries into the Presi-
dent's conduct in the Lewinsky affair and the collateral scandals.2
More importantly, it proved to be the undoing of years of effort to
protect executive privilege from risky assertions or judicial tests.' In
the course of the Clinton litigation, courts imposed a series of new

     * J.B. & Maurice C. Shapiro Professor of Public Interest Law, George Washington
 University Law School. B.A., University of Chicago; J.D., Northwestern University.
     1. JOHN MILTON & IsAAc ASIMoV, ASIMoV'S ANNOTATED Paradise Lost 88 (1974).
     2. I obviously come to this subject with established views. I have been critical of the
 Clinton administration's use of executive privilege arguments and its underlying theories
 supporting these assertions in both the impeachment context and other contexts. See, e.g.,
 Jonathan Turley, Checking the Executive Pulse: Mr. President, Where Is Thy Blush?; Impeachment:
 For Censure to Work, Clinton Would Need to Have the Capacity to Feel Shame, L.A. TIMES, Nov. 19,
 1998, at B9; Jonathan Turley, Clinton Maneuvers Threaten His Office, NAT'L LJ., Feb. 23,
 1998, at A19 [hereinafter Clinton Maneuvers]; Jonathan Turley, Guarding the King, Not His
 Secrets, LEGAL TIMES, Feb. 2, 1998, at 27 [hereinafter Guarding the King]; Jonathan Turley,
 Nothing Bars Questioning the President's Bad Ideas; Executive Privilege: The Right to Refuse to Di-
 vulge How FALN Clemency Decision Was Made Is Not Absolute, or Unwarranted Here, LA. TIMES,
 Sept. 27, 1999, at B7 [hereinafter Nothing Bars Questioning]; Jonathan Turley, Rule of Law:
 Praetorian Privilege, WALL ST. J., Apr. 27, 1998, at A23 [hereinafter Praetorian Privilege];
 Jonathan Turley, The President and the Damage Done; Legal Costs of Clinton's Defense Outweigh
 Financial Costs, LEGAL TIMES, Apr. 20, 1998, at 23.
     3. It has been suggested by former White House Counsel Abner Mikva that the ad-
ministration had no alternative but to litigate these privileges. See Jim Oliphant, Losing
Privilege; A Scandal-Scarred Legacy for Future Presidents: White House Counsel Without a Shield
LEGAL TIMES, Mar. 6, 2000, at 20 (reporting Mikva's statements that because prior attorney-
client rulings did not allow the presidency to function as it should, the Clinton administra-
tion was forced to litigate). Such a statement is manifestly at odds with the more cautious
approach of prior administrations. See infra notes 15, 135-152 and accompanying text (dis-
cussing the historical use of executive privilege). The White House is never compelled to
litigate executive privilege on questionable grounds. An administration could waive privi-
lege as to some of the information and still preserve objection for future cases. Unlike
court edicts, such waivers do not bind future administrations. Ultimately, Mikva's view
proved highly imprudent in an acutely sensitive and protected area.

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