From the Dripping With Irony department:
Thanks to the legal legwork of Kenneth Starr in l'affaire Clinton a decade ago, there's a chance the White House's executive privilege defense against Congressional subpoenas may not hold up if it gets to court.
The DOJ document dump in the attorney case may already contain enough evidence of potential wrongdoing to make Executive Privilege a non-starter.
Jump into the Wayback Machine for a look at the July 28, 1998 edition ofThe Washington Post:
The federal judge overseeing the Monica S. Lewinsky investigation agreed with President Clinton's legal argument invoking executive privilege but decided his right to confidentiality was outweighed after independent counsel Kenneth W. Starr privately presented secret grand jury evidence to her.
Okay, so Starr successfully claimed that existing evidence of probable cause can outweigh executive privilege... existing evidence like those DOJ e-mails in the attorney case, perhaps? Once more, back to 1998:
In a redacted version of her May 4 decision made public yesterday, Chief U.S. District Judge Norma Holloway Johnson determined that Clinton could legitimately claim the privilege to try to prevent prosecutors from asking senior aides about internal White House conversations concerning the Lewinsky probe. But Johnson added that a private submission from Starr convinced her the testimony of those aides was important enough to Starr's investigation to justify overriding Clinton's assertion of confidentiality.
As Starr argued at the time:
"every potential White House scandal can be shrouded in executive privilege. If a president were to murder a political opponent, he would argue that the resulting uproar could impair his legislative program, distract him from his duties, affect his dealings with foreign heads of state, and potentially give rise to impeachment proceedings -- the very arguments raised by the White House here. . . . The result would be this: A privilege intended to aid the functioning of the executive branch would be transformed into a cloak for the gravest private misdeeds of a president."
Now granted, Starr was conducting a criminal investigation, not a Congressional one... I confess I don't know if that makes a difference.
Any lawyers out there want to weigh in on this?