Kenneth Starr told a University Law School audience Saturday that although presidents have the right to withhold information from Congress, that right is subordinate to the needs of the criminal justice system.
The independent counsel took a brief leave from his Washington, D.C., office this past weekend to share a panel with three law professors in a symposium to discuss executive privilege. For most attendees, it was their first chance to see Starr in person and hear him speak at length about a topic so close to his investigation of President Clinton.
The president frequently claims executive privilege, most recently in an effort to deflect questions regarding the Monica Lewinsky scandal. If used successfully, the privilege allows White House lawyers to keep information out of the hands of Congress and away from the independent counsel’s office.
Yet the panelists, Starr included, didn’t let the White House investigation dominate the discussion and those in attendance didn’t press the topic.
For many, the Starr they saw on Saturday was different from the prosecutor they’ve been seeing on CNN and the nightly news during the last two years.
“I was surprised to see him here,” said Don Johnson, a Law School alumnus. His son Matthew, also a University Law School alumnus, added that the prosecutor came across as the most eloquent of the panelists.
It was a “nonpartisan presentation. Spoken like a true lawyer,” said Avis Lindquist, still bubbling from Starr’s closing comments. “He’s wonderful. Tactful, diplomatic … He’s criticized for too many things unfairly.”
Outside Willey Hall, a group of about a dozen people didn’t find Starr so captivating.
Most protesters kept their distance from the building, but two made their way inside, holding up handmade signs denouncing the Clinton investigation and attracting the gaze of several TV cameras.
Despite the distractions, the four panelists stuck to their task: exploring the bounds of the executive privilege doctrine since the 1974 impeachment of Richard Nixon.
Panelist Mark Rozell, a University of Pennsylvania law professor, set the groundwork for the discussion with his thesis on the subject: There is “no doubt whatsoever that executive privilege is a legitimate presidential power, but like other powers, it is one subject to limits.”
The analysis was based on a constitutional interpretation of the executive privilege doctrine and its historical uses.
Saikrishna Prakash, Boston University School of Law professor, was the standout of the four panelists, arguing that the Constitution does not provide any foundation for executive privilege. Congress, he said, and no other branch has the right to carry out all laws. “Many things would be useful, but that doesn’t mean any branch has rights to them.”
Looking back to the Nixon impeachment, Starr quoted a 1974 letter Supreme Court Justice Byron White wrote to the recently deceased Justice Lewis Powell: “(Executive privilege) does not extend to evidence that is relevant and admissible in a criminal prosecution.”
Starr added that the needs of the criminal justice system are paramount and should come before all others, including those of the president.