Talkback Live: "Could Executive Privilege Protect the President?"

Aired on CNN's "Talkback Live" program, February 20, 1998 - 3:00 p.m. ET
RON SILVER, HOST: Could executive privilege protect the president and his aides from Ken Starr's grand jury? Get ready to talk back.

Hello, and welcome to TALKBACK LIVE, CNN's Interactive talk show. I'm Ron Silver at the CNN Center in Atlanta. Presidential confidante Bruce Lindsey made another visit to Ken Starr's grand jury yesterday. At the same time, White House lawyers went to court to discuss executive privilege with the chief U.S. district judge. So far, they haven't invoked the privilege, but could they?

Let's ask Peter Wallison, former White House counsel in the Reagan administration, and Stan Brand, George Stephanopoulos' attorney. Welcome, gentlemen. Thank you for being with us here today.

Executive privilege, it's an unsettled legal doctrine. Seems to go back to George Washington's time when he tried to invoke it; Thomas Jefferson in the trial with Aaron Burr (ph); Eisenhower. The last time we heard about it was Richard Nixon. Exactly what are we talking about, gentlemen?

Peter, what is executive privilege?

PETER WALLISON, REAGAN WHITE HOUSE COUNSEL: Executive privilege is a judicially created exception to the general rule that the law and the courts are entitled to every person's evidence. Over time, the courts have decided and felt that it would work better, it would enable executives to get, at least presidents and perhaps their Cabinet officers, to get the best possible advice, the most candid advice if the advice that they were given was kept completely private and not divulged to the courts in any kind of legal proceeding.

So the concept developed that there was such a thing as a privilege for the advisers of the president to give him advice, and the president could claim that privilege so that he would not have to or they would not have to divulge either to Congress or to the courts what they told the president in a governmental situation.

SILVER: Thank you, Peter. Herb? [audience member]

HERB: Is there anything in the law in writing that defines executive privilege?

WALLISON: No, there isn't anything that specifically defines executive privilege. It's a judicially created privilege, and it is created by the courts on a case-by-case basis. Its boundaries are defined by the facts of each case and the court's decisions in connection with each of these individual cases.

SILVER: Stanley, could you join us here? I'd like to ask you a question before we go to a caller.

STANLEY BRAND, GEORGE STEPHANOPOULOS' ATTORNEY: I was just going to amplify one piece of that. It's true that it is judicially created, but the Supreme Court did say it's rooted in a constitutional separation of powers. And it's implied from the structure of our government, even though it's not explicitly written into the Constitution.

SILVER: Stan, I think many people seem to feel that privilege is invoked only when matters of national security are under discussion. Many people seem to feel also that a president's deliberations and communications with his staff should also be protected. Do you have anything to add to that or defend that?

BRAND: Well, yeah, I mean, democracy abhors secrecy, but even within a Democratic system that we have there are well recognized exceptions to that. For instance, judicial deliberations are not public, although the judicial opinions are.

In Congress, we have a privilege called the speech or debate privilege, which protects legislators from being sued or called into question for the acts that they perform as legislators.

There are spousal privileges. There's a physician-patient privilege. So Peter states the rules correctly. That is the courts have a right to every man's evidence. There are these well-recognized jurisprudential exceptions, and there's a great deal of case law that explains how these are to be applied.

SILVER: Dennis? [audience member]

DENNIS: Historically, we know the president can take executive privilege. How far out has that actually been extended to other staff members? I'm talking about facts not theory.

WALLISON: Well, in fact, I don't know of a case where executive privilege has been asserted by a Cabinet member. It probably would not be available at all to the president's staff. I would be the president's privilege to keep his staff from testifying about statements that they made to him and he made to them in the course of governmental activity. And there's a possibility, although I don't know of a case, where a Cabinet officer in advising the president or receiving advice from his own staff might be able to claim the privilege. But it's quite limited.

SILVER: Peter, can I ask you a question? Can you speculate what kind of information does Starr want from Lindsey?

WALLISON: Well, I suppose just looking at what's in the newspapers, one would expect that he's probably asking Lindsey about the provenance, the beginnings of the sorts of the so-called talking points. Those were the talking points, the three-page document that Monica Lewinsky gave to Linda Tripp, which attempted to get Tripp to testify in a particular way about Kathleen Willey's encounter with the president.

SILVER: Peter, you worked in the Reagan White House. Was executive privilege ever discussed with the president? Were you there during the Iran-Contra years when Lawrence Walsh was the independent counsel?

WALLISON: I was there during the Iran-Contra years. We did not attempt to claim executive privilege in connection with any of the requests for information that we received either from Judge Walsh or from Congress. There were many discussions of executive privilege not in connection with Iran-Contra, relating to other requests that we had either from the courts or from Congress during that period. But to my knowledge, President Reagan never asserted executive privilege.

SILVER: Stan, could I ask you to expand a little bit? You mentioned before about spousal privilege, and we can get to this in a later segment, but I think many people in this country were surprised and concerned when a mother was forced to testify against her daughter. Why is there a spousal privilege and not a parent-child privilege?

BRAND: Well, like most of these things in the law, it goes back to ancient times, if you will. The spousal unit, if you will, was always conceived to be one entity. The husband and wife had a common interest in their communications. And the courts under the common law never decided or believed that it was in society's interest to have a privilege between parents and children. And so for that reason, there simply never grew up a concept that anything that was discussed between parent and children could be privileged.

SILVER: Mahesh from Florida, do you have a question for our guests?

MAHESH: I do. Does the currently prevailing laws distinguish between civil cases and criminal cases? Shouldn't there be a big distinction? Because in civil cases, it should be easy for executive privilege to be exercised, where as in criminal cases, maybe the president should not have a right to exercise executive privilege.

SILVER: Good question.

BRAND: The Nixon case itself, of course, was a criminal trial, but the privilege has been applied under different standards to both civil and criminal cases. Even in the Watergate, in the post- Watergate era, private litigants were able to obtain some materials from the White House not withstanding the assertion of privilege.

The question is, when balancing the needs of the particular forum, whether it be a civil trial or a criminal grand jury in this case, against the president's interest in receiving candid advice.

SILVER: It's time. We have a minute before we go to break. Can I ask you to follow up on that a little bit? You mentioned that they were investigating a crime previously. What is the root crime that is being investigated here? There are ancillary issues -- subornation of perjury, a possible perjury in a deposition alleged -- but what is the crime?

BRAND: I may be the wrong to be asking this because my view is that the Whitewater prosecutor and the Whitewater grand jury has strayed totally away from its moorings in investigating the private sex life of the president.

I don't believe there is a crime that's to be examined in that case. Maybe Peter feels differently.

SILVER: Stan, I think Peter does. Peter?

WALLISON: I certainly do feel differently. You referred to subornation of perjury, and perjury, and tampering with witnesses as ancillary issues. That's exactly the opposite.

The ancillary issue are the sexual allegations. The real issue here, the issue that everyone should be concerned with is the question of perjury and subornation of perjury, and tampering with a witness in a civil or in a criminal context.

SILVER: OK, we're going to talk about more of this right after this break.


ANNOUNCER: In 1974, the Supreme Court ruled 8-0 that President Nixon could not invoke executive privilege to block the subpoena for White House tapes.

SILVER: Hi, welcome back. I'm Ron Silver at the CNN Center in Atlanta. Gentlemen, I'd like to go back to something that we started talking about before. Not about the legal issue of whether or not a mother can be coerced or forced to testify against a child, but is there an ethical issue involved? Has an ethical line been crossed? Some things might be legal but they still may not be right. Peter?

WALLISON: Well, let me try to respond to that. Clearly, it is a difficult question when a prosecutor calls a mother to testify against -- possibly against her daughter. But you have to think of it from a standpoint of the prosecutor. He has been assigned to get all the facts here. And if he had not chosen to seek all of the evidence that was available to him, he could be heavily criticized in his role as prosecutor. So if there is no privilege, if there is evidence out there that he can obtain, which would be useful in his case, he's got to go after it. And it is not a question of ethics. It is a question of doing your job.

SILVER: Stan, what do you think?

BRAND: I think every prosecutor has to measure the tactics he uses against what he's faced on the other side. And I think there has to be some proportionality.

It strikes me that in this case, Ken Starr jumped a bit quickly to a very aggressive tactic with respect to the Lewinsky situation and didn't really explore any other alternatives.

I have been in public official cases defending them when relatives of the target or the subject have been subpoenaed, but that's usually after some exploration of alternative means or some clear demonstration of need. My own view is that he ratcheted up way too quickly on this without exploring other alternatives.

SILVER: Barbara? [audience member]

BARBARA: I have a 25-year-old daughter, and we talk about many things. And I would hate to think that someone forced me to have to tell a confidence that she had told me. I think the only time that I would ever do it at all would be in a case of like someone being killed, just a very terrible tragedy that in my own conscience I couldn't tell somebody about.

SILVER: Well, what do you think about the special prosecutor calling the mom to testify against the daughter?

BARBARA: I just don't think she should have to do it. If she chooses to do it, fine, but not that she would have to do it.

SILVER: Gentlemen, I'd like to ask the question in a different way. Can something be legal, can something be right, can something be useful in the judicial process but still tear against the fabric of this society? Peter?

WALLISON: Of course, it can. These things can be extremely disruptive. And, in fact, the fact that President Nixon had to resign as a result of the evidence that was produced against him was terribly disruptive to our society. Not only did it affect his presidency and our government at that time, but then he was pardoned after that, and that obviously affected President Ford's presidency and his chances for reelection. These issues can be terribly disruptive, but we cannot ignore the fact that they are extremely important, that the issues that we are dealing with here, the rule of law, the question of honesty and probity on the part of our highest public officials cannot simply be ignored and turned aside.

SILVER: Jeannie is with us from Wyoming.

JEANNIE: I agree with what several people say, but I understand there's a legal ethics, and I understand there's a right and a wrong, but I also understand that we have a privacy point, and family is family. And I don't think anything should be put in that actual position unless it's absolutely 100 percent positive. I mean, family is family.

SILVER: Well, obviously, gentlemen, this is a very visceral issue for a lot of Americans, not just simply a legal issue.

I'd like to put another question to you about privilege, as long as we're on it this segment here. What about the Secret Service? Is there any privilege, the men guarding the president, the men and women guarding the president? They're privy to a lot of private things. Do they have any protection, and does privilege extend beyond the grave. Stan, you want to start with that?

BRAND: Yeah, let me try my hand at that. The second question first. There is now pending in the Supreme Court a case involving Vince Foster's lawyer where he is asserting that the confidences given to him by the late Vince Foster are covered by the privilege. The Court of Appeals found that they were not, that they didn't survive his death. And so that's going to be answered by the Supreme Court maybe.

On the other question, what people have to understand, I think, is we talk about privilege, and of course, America, the word privilege itself grates on everybody. These aren't privileges that are given to public officials for their own personal benefit. They're given to them so that they can do their job in an unfettered and unintimidated fashion. They're really the public's privileges. The privilege that a Congressman has to speak freely on the floor of the House is not his privilege. It's the privilege so that he can go and do his job fearlessly and not be afraid that what he says will be subject to suit. And that's the same with respect to executive privilege.

SILVER: I'm sorry to cut you off. Finish up, please.

BRAND: These are just things that are really part of the fabric of public service. They're not personal privileges in that sense.

SILVER: Peter, would you like to respond?

WALLISON: Yeah, well, I don't know that I want to respond. I think that what Stan said has a lot of sense to it.

On the specific question, however, of the Secret Service, it gets right to the ultimate question of what a privilege is for. And the argument that the Secret Service is making right now is that they should not be compelled to testify, because if they are, the president would avoid having the Secret Service around him, close by him for fear that ultimately they'll be required to testify against him.

That's not a point that we should ignore. I think it's a significant point. But we always have to balance one thing against another. We have to balance what is important to know in a judicial context, what the court should find out, what the judiciary should have a chance to rule on.

And in the case of the Secret Service, we know very well at this point that they can be outside the door where the president is having a meeting. They don't have to be at his side. He doesn't have an expectation of privacy because we have seen in several instances now, not only some disclosures about President Kennedy, but also disclosures about President Clinton at the very outset of his administration. There were complaints about the fact that the Secret Service might have been telling things that were going on in the Clinton family.

So the president has no expectation of privacy with respect to the Secret Service, and yet, all during the Clinton presidency, the Secret Service has been close enough to him to be able to protect him.

SILVER: Thank you, Peter. Steven, would you like to add something?

STEVEN: Yes. President Clinton was first elected based on his integrity. Why should it have been relevant then and not relevant now?


BRAND: Well, I don't know. I guess it's really been relevant throughout the course of his having run for office. You know, the integrity question is really a question I felt was already settled twice. Once in 1992 and again in 1996. I just don't think we want to carry the integrity question to the point of subjecting our presidents to endless litigation in courts of law to prove or disprove that. I think that will take us down a road that quite frankly we're never going to get out of and is going to distract all of our presidents, Republicans and Democrats, from ever being able to serve.

SILVER: Thank you very much, gentlemen. I'm sorry, our time is up for now. Thank you for being with us here today to Peter Wallison and Stan Brand for joining us.

Up next, Vincent Bugliosi explores the relationship between the Supreme Court and Monica Lewinsky. You stay there.

ANNOUNCER: President Clinton invoked executive privilege in 1995 to defy Senate subpoenas in the Whitewater case.


SILVER: Welcome back to TALKBACK LIVE. I'm Ron Silver at the CNN Center in Atlanta. Joining us now are Larry Klayman, chairman and general counsel of Judicial Watch; and Vincent Bugliosi, former prosecutor and author of "No Island of Sanity, Paula Jones vs. Bill Clinton, The Supreme Court on Trial."

OK, gentlemen, Madison Guaranty to Monica Lewinsky via Paula Jones. How did we get from there to here? Now before you answer that, I'd like to read you a quote from Lawrence Walsh, a former independent counsel and special prosecutor for Iran-Contra: "Starr's activity is not consistent with that of a professional prosecutor." Do you feel that way, Larry?

LARRY KLAYMAN, JUDICIAL WATCH: No, I don't. His conduct is completely appropriate. The link they're on is, of course, Vernon Jordan. He's the one that was accused of getting hush money for Webster Hubbell in the Whitewater affair. He's the one who is accused of doing the same thing with regard to hushing up Monica Lewinsky here. And, of course, character and dishonest conduct knows no bounds. We now have 38 scandals. One, in many ways, follows after the next. And these kinds of things clearly have some direct relationship between themselves.

Ken Starr is doing no more, no less than any prosecutor in this country would do. And, in fact, most people don't realize this, but all the prosecutors, the U.S. attorneys in the federal system, are chosen by the president. They do have a political agenda in large part. And it's not unusual that Ken Starr would be a Republican, would be a conservative. And in many ways, it's desirable to have someone from the opposite political spectrum to make sure you get a fair investigation.

SILVER: Vincent?

VINCENT BUGLIOSI, FORMER PROSECUTOR: Well, you were asking me the connection between Whitewater and investigating the president's private sexual activity. And I think the answer, Ron, is that this fellow, Starr, is not the Whitewater prosecutor. It's a misnomer to say that. He's the Bill and Hillary Clinton prosecutor. He's determined to investigate every breath that they have ever taken and do everything possible and imaginable to get them out of the White House and behind bars. Now if we look at the...

KLAYMAN: If that's the case, Vincent, he hasn't done a very good job. They're still on the loose.

BUGLIOSI: No, I know, but he's trying. He's looking for something, anything at all to get them behind bars.

If we look at the essence of what he's saying, Starr, let's separate the wheat from the chafe and assume that he's correct, that the president did certain things. What's the heart of this case? Here's the heart of the case. That President Clinton had a consentual sexual affair with Monica Lewinsky and told her not to tell anyone about it. That's rather common. It's almost as common as the common cold. And yet this outrageous Starr - and I use the word outrageous, I choose my words carefully, I'm an author, I'm a trial lawyer -- this outrageous Starr is investigating this case in the same way he would be expected to investigate the crime of treason or murder.

I would ask anyone out there to ask themselves this question: If this were treason or murder, how would Starr investigate it any differently? He's trying to turn a mother against the daughter, the Secret Service against the president.

I agree with Lawrence Walsh completely. His conduct is not the conduct of what you would expect of a real prosecutor in the real world.

KLAYMAN: Let me reply to that if I can briefly, Ron.

SILVER: Go ahead.

KLAYMAN: Lawrence Walsh has been on the rampage ever since he couldn't indict President Bush. He's kind of an estranged prosecutor who's out there on the loose, an embittered man. And frankly, I don't think his statements have a lot of weight in the context of this case, 'cause he doesn't have access to the information Starr does.

And secondly, the problem here is not legally speaking. The adultery issue, although I disapprove of that, and frankly the president's under the military code of justice, and it does apply. But the problem here is that he may have given false testimony in a case which is prejudicing the rights of a citizen named Paula Jones. Now that's not correct. You can't suborn perjury. You can't commit perjury, and you should be held accountable. And the fact that people aren't being held accountable for telling the truth or not telling the truth is what's the problem in the legal system. That's why people have lost confidence in the legal system.

SILVER: Larry, Vincent, let me just a phone call in here. We'll come right back to that. We have Furley from Boston on the line. Furley? From Maryland, I'm sorry.

FURLEY: Good afternoon. Ladies and gentlemen, I am very, very concerned about this excessive power that this investigator has, this special prosecutor. He can do anything he wants. For five years now, he has gone after the president, the people of this country, the president's family, and the nation. He just wants to get the president for anything whatsoever.

KLAYMAN: You know why that isn't true in all due respect is because he's had enough in a number of scandals to bring indictments. He has not brought indictments. He could have indicted Monica Lewinsky by now. He could have indicted the president assuming you can indict a president. The evidence is there. The standard is very low probable cause.

And I think people have to recognize the fact that Starr has foreborn. That he hasn't taken these extreme actions shows that he, in fact, is a very fair man.

SILVER: OK, thank you. I think we have somebody who agrees with you in our audience. Mary, what do you think about the job that Ken Starr is doing?

MARY: I think he's doing a great job. I think he's been very tempered. I think if the president had been up front and if he was allowed to get the counsel, the legal stuff that he needs without subpoenaing, I think he would have done a better job already.

SILVER: Vincent?

BUGLIOSI: Well, Larry said something earlier that Ken Starr is doing what any other prosecutor in this country was doing. That may be a paraphrase, but he said something essentially like that.

I would ask Larry to show me one case in the annals of American crime in the history of American jurisprudence where a man had sexual intercourse and was prosecuted thereafter for perjury for denying under oath that he had sexual intercourse, or was prosecuted for obstruction of justice for telling the woman not to tell anyone about it, or where there was a federal sting operation on the woman to get evidence that she had sex with the man.

What I'm telling you is that what Mr. Starr is doing is unprecedented in the annals of American history. No other prosecutor would have anything to do with what he was doing. If he walked into a typical prosecutor's office in this country, and on that desk of that prosecutor they had murder files, drug trafficking files, arson, rape, robbery, and he sat down in front of the prosecutor and said, "Listen, I've got a case here where two adults had consentual sexual intercourse, but now neither one of them want to admit it, and they're lying about it under oath," a typical prosecutor would throw Starr out of the office. And if he did not do that, as soon as he left the office, he'd call his supervisor and say, "Something is wrong with this guy. Check him out. Maybe he's having trouble at home. He might be on drugs."

SILVER: OK, Vincent, excuse me for interrupting. Larry, we're going to give you a chance to respond to that. I think you want to, right after we come back.


ANNOUNCER: Join our TALKBACK LIVE discussion. Phone us at 800-310-4CNN. Fax us at 888-310-4FAX, or go on line at

SILVER: Welcome back to TALKBACK LIVE. I'm Ron Silver at the CNN Center in Atlanta. Vince, do you want to phrase your question again and let Larry respond to it?

BUGLIOSI: The last question, well, was just that I'm not aware of any case in American history where a man has been prosecuted for perjury for denying having an affair or for obstruction of justice or subornation of perjury for suggesting or telling the girl or the woman not to talk about it. I've never heard of that.

In fact, I offered a young lady on the Geraldo show a couple of nights ago $10,000 if she could come up with one case, plus I would pay for all of her expenses in trying to find that case. And she declined my invitation.

KLAYMAN: Who were you offering? Geraldo's money or yours?

BUGLIOSI: No, I was offering my own money. This was a lady on the show. She's a commentator.

KLAYMAN: The question as it was phrased at the end, Ron, was: Who cares what people do in their own homes? And that's really the issue here. Vince hit the nail on the head. This is not the president's home. This is our home. And we deserve a certain respect to that home not to have the president during working hours go off to the Oval Office and commit illicit sexual acts if that, in fact, occurred.

But, you see, Vince sets up. He's a fine lawyer, and he sets up a straw case here. What he's saying this is an issue of sexuality, it's an issue of adultery. Sure it is in a moral sense, but in the legal sense, it's primarily an issue as to whether Paula Corbin Jones, who has sued the president for sexual harassment and needs to prove that, in fact, she's been damaged and wants to show a course of conduct that the president did this with other women to be able to prove her case, to show the requisite intent, as lawyers call it, whether she's entitled to have the president testify in her case truthfully and not have people mess around with that testimony by paying hush money, and suborning perjury, and doing all those kinds of things. Whether it occurs in the context of sexual harassment or murder, we cannot tolerate lying and bribery in our legal system. And when the president does it as the chief law enforcement officer, what kind of example does that set for the rest of us?

SILVER: OK, gentlemen...

BUGLIOSI: Well, Ron...

SILVER: Yeah, Vince, go ahead.

BUGLIOSI: Well, I was just going to say that if, in fact, the president did have a sexual relationship with this Monica Lewinsky in the Oval Office, very, very disappointing. I think we're entitled, as Americans, to be judgmental. And that if he ever came up for reelection, that certainly would be a factor that people would take into consideration if they voted for him the first time.

But the point is even though you can be judgmental and be disappointed, you don't destroy a presidency over it, set aside an election to the concomitant harm and trauma of the American people. We have to be realistic about this.

SILVER: Gentlemen, gentlemen, let me throw something else at you.


SILVER: In Morrison v. Olson in 1988, I believe the Supreme Court upheld the Independent Counsel Act. And there's a little bit of irony here that I think many Democrats and many liberals at that point applauded that, and there was a dissent. And it was Justice Scalia. And Scalia, in his dissent -- I'm paraphrasing it now, of course -- was basically worried about the extraordinary powers that a special prosecutor can have at this disposal to kind of harass or go after someone. And one Watergate prosecutor mentioned to me at one point, he said, "If you give me enough money and enough time, I can get anyone." So regarding Scalia's dissent, Larry, what do you feel about Scalia's concerns, Justice Scalia's concerns about...

KLAYMAN: I happen to like Justice Scalia. I don't agree with him in that context if that's what he said. I don't recollect frankly, the specific words that he used.

But Ron, here's the issue. We wouldn't need an independent counsel if we had an independent Justice Department. You see, the Justice Department is under the authority of the president. And whether it's Republican or Democrat, it can't investigate its own administration. And that's why we have an independent counsel.

Some day, I hope that our group will be instrumental in convincing people to have a separate Justice Department, perhaps monitored by the Supreme Court under the judicial branch. But until we have that, we need that independence with regard to political and other types of scandals that involve the president, because his own appointee, Janet Reno, cannot investigate him. Conflict of interest.

BUGLIOSI: About the independent counsel law, Larry will agree with me, of course. Everyone knows that the whole purpose of that law, as he said, is to find someone independent, neutral. But before Ken Starr was appointed in this case as Whitewater prosecutor, before -- and I want to underline that word -- he was already on record, he was on the "McNeil-Lehrer Hour" in June of 1994 before his appointment supporting the position of Paula Jones against the president. He's been accused of what I'm going to mention, and he's never denied it, that he was giving serious thought to preparing a supporting legal brief on her behalf.

So what he should have done when he was appointed is say, "I'm very grateful. I'm very honored; however I can't accept this appointment because I'm already on record supporting Paula Jones' position against the president."

We have the absolutely inexcusable situation of someone who was already a virtual legal opponent of the president being appointed to investigate the president. He had a professional and an ethical responsibility to deny that and reject that appointment the very day that it was offered.

KLAYMAN: But the issue is not about Paula Jones.

SILVER: OK, gentlemen, we're going to take a break now and come right back to you. Coming up next, Vincent Bugliosi tells us what the Supreme Court has to do with Monica Lewinsky. We'll be right back after this break.


ANNOUNCER: President and Hillary Clinton's legal bills are not approaching $3.2 million. Tuesday, a new legal defense fund was created for the Clintons which allows individual contributions of as much as $10,000.

SILVER: Welcome to TALKBACK LIVE. I'm Ron Silver at the CNN Center in Atlanta. Vince, what does the Supreme Court have to do with Monica Lewinsky?

BUGLIOSI: Well, they made a terrible ruling in the Paula Jones case. No one has taken them on prior to my book, "No Island of Sanity." But those that have read the book, the typical comment is, "Vince, you've got the goods on the court." They made a terrible ruling, incomprehensible, not only devoid of all common sense, but perhaps more importantly, violated their own fundamental legal principles.

Here's basically the rule, Ron. Whenever any court in the land, whether it's a court in Montana or the U.S. Supreme Court, is confronted with two valid but conflicting competing interests -- in this case, Paula Jones' interest and having her case come to trial right now, the public interest and having the president be able to carry out his duties undistracted by extraneous matters such as a private lawsuit -- the court must, unless it wants to flip a coin, it must, and it's been doing this for over 200 years, they must balance the interest, weigh the interest to decide which interest is entitled to the most protection for whatever reason.

Curiously, almost mysteriously, they did not balance the interest in the Paula Jones case. If they had...

KLAYMAN: The problem with that, though, Vince...

BUGLIOSI: Let me just finish.

KLAYMAN: OK, finish.

BUGLIOSI: If they had, what conceivable reason could possibly be made for the proposition? What argument could be made for the proposition that Paula Jones' individual right to go to trial right now in the middle of the president's term, which has spawned the Monica Lewinsky matter, is more important than the rights of 260 million Americans to have their president be undiverted and undistracted in the performance of his duties? That question was never answered in the Paula Jones case for the simple reason that it was never even asked.

KLAYMAN: First of all, when the Supreme Court makes law, Ron, it does it generally speaking. It's creating precedent. That's why it takes a case, doesn't take very case. And what they're saying is is that in this case as they knew it at the time, the president is not above the law. This isn't the first president that's been sued. You had Teddy Roosevelt, you had Harry Truman, you had John Kennedy. And now, of course, you have Bill Clinton.

So they're saying that these cases should proceed, and this is the way it's been in American history. We're all equal here.

Secondly, Monica Lewinsky, that would have arisen with or without Paula Corbin Jones. There are reports in the paper today that, in fact, Monica Lewinsky was brought to the attention of Starr quite outside of the Paula Corbin Jones case. And who could ever envision that the issue would have ever arisen that our president would be accused of having oral sex in the Oval Office with a 21-year-old intern? I don't think the Supreme Court could have ever imagined anything as ghastly as that could have happened.

SILVER: Gentlemen, excuse me. I'll get back to you in a minute. We've had a lady very patiently waiting here. Susan, you'd like to say something?

SUSAN: Oh, my comment is just in regard to something that was stated earlier. And that is this whole thing isn't about just President Clinton's sexual activity. It has to do with his judgment. And if I can't trust him in a room alone with my 21-year-old daughter, how can I trust him to send my 19-year-old son to war?

KLAYMAN: That's an excellent point, and you know, we saw that the other day. Great point. At that meeting out there in Ohio, when you had Secretary Albright and the other foreign security advisers, all of a sudden, the people started to question the judgment of this president, because it started to touch them. They realized that their children's lives and perhaps their lives were going to be on the line. And that's a lot different than having a good economy or having the country at peace. When it really counts, you've got to be able to trust your president.

BUGLIOSI: Ron was saying that the Lewinsky matter would have surfaced anyway. Not Ron but Larry. That's not right. The Monica Lewinsky affidavit under oath denying having sexual intercourse with President Clinton, that was in the Paula Jones case.

President Clinton's deposition denying having a sexual relationship with Monica Lewinsky as in the Paula Jones case. Maybe the knowledge of Monica Lewinsky would have surfaced with or without the Paula Jones case, but their could not have been any criminal investigation because no crimes had been committed. The crimes that are being committed here allegedly are the affidavit by Monica Lewinsky and the deposition by President Clinton.

KLAYMAN: That's a rude Goldberg analysis.

BUGLIOSI: No, what I'm saying is that the whole investigation...

SILVER: Gentlemen, gentlemen, if you're both talking at the same time, we can't understand.

BUGLIOSI: The other point I want to mention to him, the Theodore Roosevelt and JFK and Harry Truman and those people, that didn't take place during the presidencies of these men.

KLAYMAN: Yes, it did.


KLAYMAN: It did, it did.

BUGLIOSI: Paula Jones is the first person in the history of the presidency...

KLAYMAN: You're wrong about that, Vincent.

BUGLIOSI: ... that has sued a sitting president.

KLAYMAN: Absolutely wrong.

BUGLIOSI: What he's talking about is a situation that there were some preexisting lawsuits against presidents at the time they took office. They were filed before they took office. But Paula Jones is the only citizen in American history who has sued a sitting president.

KLAYMAN: And those lawsuits continued while those presidents were in office. That is the precept.

BUGLIOSI: No, they were settled shortly thereafter.

KLAYMAN: Well, that's the option of the litigants. But they continued up to the settlement. Paula Jones could have settled here as well.

BUGLIOSI: He also mentioned the point that no president is above the law. President Clinton is not claiming...

KLAYMAN: I think you can agree with me on that.

BUGLIOSI: Yeah, I do, but President Clinton is not saying that he's above the law. In the Supreme Court in their otherwise deplorable decision said that that was not the issue. President Clinton was asking for a continuance. So the issue was never whether Paula Jones was entitled to her day in court. Of course, it is.

KLAYMAN: He also claimed he was immune from suit. He did say he was above the law.

BUGLIOSI: The question was whether temporarily immune. There is such a...

KLAYMAN: Well, are you immune or not? Are you a little bit pregnant or are you pregnant?

BUGLIOSI: No, no, no, no. Temporary immunity means you can't sue me right now. As soon as my term of office is up, then you can sue me. That's temporary immunity.

SILVER: Gentlemen, we're going to have to interrupt now for a moment. We'll be right back. Coming up, the president's circle has been called to testify. Will the president ever be called before the grand jury? We'll talk about that when we return.


SILVER: Welcome back to TALKBACK LIVE. Gentlemen, there's obviously a lot of talk about it, and we're running out of time. We have about 40 seconds left. Question to both of you. Yes or no if you can. Will President Clinton ever testify before the Whitewater grand jury? Vincent?

BUGLIOSI: I have no idea whether Starr is going to call him. If this were a case of bribery or treason or corruption, I wouldn't have any objection to it. In this type of case, which has at its core consentual sexual activity, no. Let's not make a monument out of minutiae.

SILVER: Larry?

KLAYMAN: He will testify. It's the simplest way. We've been urging Starr from day one: "Call the president in front of the grand jury. If he tells the truth, let's see what it is. If he takes the Fifth Amendment, it's over politically. This scandal will be over. Let's get back to business."

SILVER: Gentlemen, thank you very much. We're out of time. Thanks to all our guests and to you. I'm Ron Silver. Enjoy your weekend.

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