Several members of the Committee asserted that President Clinton's Assertions of Privilege were an abuse of power because even under the broadest interpretation of the presidential communications privilege, it is intended only to protect communications about official government matters. Moreover, it is a privilege for the use of the President alone. It is not intended to allow the President to cover up embarrassing personal matters. The Members charged that is exactly what President Clinton used it for here-indeed, the President repeatedly argued that he should not be impeached precisely because these matters are purely private in nature.

In addition, they argued that President tried to extend the privilege far beyond any previously known boundaries by claiming it for conversations that White House aides had with grand jury witnesses and their attorneys, the President's private attorneys, Vernon Jordan, and low-level White House employees who do not advise the President. The Members supporting impeachment for abuse of power relating to executive privilege argued that there is no legal basis for including any of these conversations within the privilege. According to this view, if these boundaries of the privilege were accepted, the President could easily cover up almost any wrongdoing. Furthermore, these frivolous assertions of privilege also cost huge amounts of the OIC's time and resources to litigate, many of which the President ultimately abandoned.

Most members of the majority associated themselves with the comments of Mr. McCollum that:

With regard to executive privilege, I don't think there's any question the President has abused executive privilege here because it can only be used to protect official functions. And in case after case, from Bruce Lindsey all the way through the witnesses who were called before the grand jury who were White House aides were not asserting executive privilege to protect the government official business they were asserting it in order to protect and keep private matters that concern the personal conduct of the President in the matters we've been discussing here. However, the prevailing conclusion of the Committee was summed up by Mr. Gekas:

I don't believe that the evidence that has been presented to us nor the contents of the referral give us the ability to second guess the rationale behind the President or what was in his mind in asserting that executive privilege. We may have a good idea. And those of us who have become suspicious about some of the actions of the President would have a right to enhance those suspicions. Nevertheless, we ought to give, in my judgment and in the judgment of many, the benefit of the doubt in the assertion of executive privilege.

Although most Members were not prepared to include abuse of executive privilege in an impeachment article against President Clinton, many many Members Members also agreed with Representative Goodlatte's statement that "this Committee should be outspoken in it's condemnation of the misuse of executive privilege because in

some instances that executive privilege power has been exercised wrongly with the Congress in other regards. And it is important that we do not allow a continued abuse of the executive privilege power."

The following is a list of assertions of Executive Privilege by President Clinton that many Members of the Committee found to be frivolous.

In the course of the Lewinsky investigation, President Clinton abused his power through repeated frivolous assertions of executive privilege by at least five of his aides.

1. Bruce Lindsey

Mr. Lindsey is Assistant to the President and Deputy Counsel and one of President Clinton's closest confidantes. None of the conversations for which Mr. Lindsey claimed executive privilege involved official governmental matters and the privilege was overcome by the need for the information in the criminal investigation. In addition, Mr. Lindsey claimed executive privilege for a typed statement about privilege that he brought in and read to the grand jury even after he had read it. He claimed executive privilege for his conversations with the President's private lawyers and Vernon Jordan. He claimed executive privilege for conversations he had with attorneys for witnesses who appeared in the grand jury. He claimed executive privilege for a conversation with Stephen Goodin, who is the President's personal aide and who has no responsibility for advising the President.

It should be noted that at some points before the grand jury, Mr. Lindsey took the position that he was not actually asserting the privilege, but that he was merely noting that the answer might be privileged. He further asserted that he would have to get instructions from the President as to whether to assert the privilege. Whatever the technicalities, he refused to answer the questions. See, e.g., Lindsey 2/18/98 GJT at 77-79: Supplemental Materials (H. Doc. 105-316) at 2360.

The President contested the OIC's motion to compel the testimony of Mr. Lindsey. After losing in the District Court, the President abandoned the claim of executive privilege. In Re Grand Jury Proceedings, 5 F.Supp. 2d 21 (D.D.C. 1998). However, he continued to pursue a claim of governmental attorney-client privilege with Mr. Lindsey. In addition, despite the earlier abandonment of the claim, Mr. Lindsey again asserted privilege when he appeared in the grand jury on August 28.

See the list, infra, for exact questions to which Mr. Lindsey asserted executive privilege.

2. Lanny Breuer

Mr. Breuer is a special counsel to the President working in the White House Counsel's Office. None of the conversations for which Mr. Breuer claimed executive privilege involved official governmental matters and the privilege was overcome by the need for the information in the criminal investigation.

In addition, Mr. Breuer asserted executive privilege for his conversations with the President's private lawyers and his conversations with a low level White House employee about his efforts to

get her an attorney. Neither the private lawyers nor the low level employee fell within the privilege.

Interestingly, the President did not claim executive privilege for Mr. Blumenthal's conversations with the President's private lawyers. Blumenthal 2/26/98 GJT at 27-34; Supplemental Materials (H. Doc. 105-316) at 164–65. In addition, Mr. Breuer asserted executive privilege for conversations with Mr. Blumenthal when Mr. Blumenthal had already testified to the substance of those conversations. Compare Breuer 8/4/98 GJT at 19, 22-23, 28; Supplemental Materials (H. Doc. 105–316) at 269–71 with Blumenthal 6/ 25/98 GJT at 30-31, 50; Supplemental Materials (H. Doc. 105–316) at 196, 201.

According to the referral from the Office of the Independent Counsel, on August 11, 1998, the District Court denied Mr. Breuer's claim of executive privilege. On August 21, 1998, the White House appealed to the D.C. Circuit. The White House ultimately abandoned its appeal of this case. It is unknown whether Mr. Breuer has returned to the grand jury. See Referral (H. Doc. 105-310) at 208.

See the list, infra, for exact questions to which Mr. Breuer asserted executive privilege.

3. Cheryl Mills

Ms. Mills is Deputy Assistant to the President and Deputy Counsel. None of the conversations for which Ms. Mills claimed executive privilege involved official governmental matters and the privilege was overcome by the need for the information in the criminal investigation.

In addition, Ms. Mills claimed executive privilege for her conversations with the President's private lawyers. She claimed executive privilege for conversations she had with witnesses who appeared in the grand jury and their attorneys. She claimed executive privilege for a conversation with Betty Currie, who is the President's personal secretary and who has no responsibility for advising the President.

As far as is publicly known, the OIC never sought to litigate Ms. Mills's claims of executive privilege.

See the list, infra, for exact questions to which Ms. Mills asserted executive privilege.

4. Sidney Blumenthal

Mr. Blumenthal is an Assistant to the President who works on a variety of matters. None of the conversations for which Mr. Blumenthal claimed executive privilege involved official governmental matters and the privilege was overcome by the need for the information in the criminal investigation.

The President contested the OIC's motion to compel the testimony of Mr. Blumenthal. After losing in the District Court, the President abandoned the claim, and Mr. Blumenthal answered the questions in the grand jury. In Re Grand Jury Proceedings, 5 F.Supp.2d 21 (D.D.C. 1998).

See the list, infra, for exact questions to which Mr. Blumenthal asserted executive privilege.

5. Nancy Hernreich

Ms. Hernreich is Deputy Assistant to the President and Director of Oval Office Operations. Ms. Hernreich described her job as executing the President's daily schedule and managing his immediate secretarial staff. Hernreich 2/25/98 GJT at 4-7; Supplemental Materials (H. Doc. 105-316) at 1318-19. None of the conversations for which Ms. Hernreich claimed executive privilege involved official governmental matters and the privilege was overcome by the need for the information in the criminal investigation.

In addition, Ms. Hernreich is a clerical and administrative employee. She does not fall within the category of advisers covered by the privilege--those "who have broad and significant responsibility for investigating and formulating the advice to be given the President on a particular matter." In Re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997). In this connection, the President did not assert executive privilege with respect to Betty Currie, who holds a similar job. The President contested the OIC's motion to compel Ms. Hernreich's testimony, but without explanation abandoned the claim immediately before the hearing. See Referral (H. Doc. 105– 310) at 207.

See the list, infra, for exact questions to which Ms. Hernreich asserted executive privilege.

Lying about Assertions of Executive Privilege

Several members of the Committee concluded that the President has lied at least twice about his claims of executive privilege. On March 24, while traveling in Africa, the President publicly stated that he did not know about the assertions of executive privilege and said that the press should ask someone who knows. A week earlier in a sealed filing, White House Counsel Chuck Ruff had filed a declaration in which he told the Court that he had discussed the matter with the President and that the President had directed him to assert the privilege. See Referral (H. Doc. 105–310) at 20708.

After Judge Johnson ruled against the President on May 27 on executive privilege with respect to Ms. Hernreich, Mr. Blumenthal, and Mr. Lindsey, he abandoned those claims of executive privilege. The OIC thought that the President would no longer claim the privilege in the grand jury. However, Mr. Breuer appeared in the grand jury on August 4 and again made broad claims of executive privilege. On August 11, Judge Johnson again ruled against the President. The same day, Ms. Mills appeared in the grand jury and made broad claims of executive privilege. On August 17, the President told the grand jury that he strongly felt that the original executive privilege decision should not be appealed. On August 21, he filed an appeal in the Breuer case. On August 28, Mr. Lindsey appeared before the grand jury and again asserted executive privilege even though the President had previously abandoned the claim. See Referral (H. Doc. 105-310) at 208-09. The White House later withdrew its appeal of the Breuer executive privilege case.

Questions on which Bruce Lindsey asserted executive privilege

1. Q. Have you received information from him [i.e. Ms. Currie's attorney], sir?

A. No, sir. Not directly.

Q. Directly or indirectly?

A. I don't believe that I can respond to that one. I think that would cover areas that are potentially privileged. Lindsey 2/18/98 GJT at 45; Supplemental Materials (H. Doc. 105-316) at 2355.

2. Mr. Lindsey claimed executive privilege for a typed statement about privileges that he brought in and read to the grand jury. Lindsey 2/18/98 GJT at 57-58; Supplemental Materials (H. Doc. 105-316) at 2357.

3. "Tell the grand jury about all conversations you had about Monica Lewinsky at any time, including, say, since the first of 1998." Lindsey 2/18/98 GJT at 73-74; Supplemental Materials (H. Doc. 105-316) at 2359–60.

4. "As counsel for the presidency or the President, are you aware of any statements to you where the President has indicated that he wanted to limit disclosure of information in this matter, that being the Monica Lewinsky matter?" Lindsey 2/18/98 GJT at 76; Supplemental Materials (H. Doc. 105- 316) at 2360.

5. "Knowing that we may ask you those question, did you go to the President and ask the President whether or not he would waive attorney-client privilege or waive executive privilege?" Lindsey 2/ 18/98 GJT at 78; Supplemental Materials (H. Doc. 105–316) at 2360.

6. "Well, can we assume that if you had had that conversation and he [i.e. the President] had directed you to answer the questions and to waive the privilege, you'd be doing so today?" Lindsey 2/18/ 98 GJT at 84; Supplemental Materials (H. Doc. 105-316) at 2361.

7. "Can you tell us about those [i.e. conversations with the President about the Jones case]?" Lindsey 2/18/98 GJT at 84-85; Supplemental Materials (H. Doc. 105-316) at 2361.

8. "Will you tell the grand jurors what those facts [i.e. facts learned from the President about the Paula Jones matter] were?" Lindsey 2/18/98 GJT at 89-90; Supplemental Materials (H. Doc. 105-316) at 2362.

9. "Tell us what you discussed [with the President about Monica Lewinsky and the Paula Jones matter]." Lindsey 2/18/98 GJT at 90; Supplemental Materials (H. Doc. 105-316) at 2362.

10. "Did you tell the President that Monica Lewinsky was identified as a witness in the Paula Jones case?" Lindsey 2/18/98 GJT at 91; Supplemental Materials (H. Doc. 105-316) at 2362.

11. "Q. When did you first know that Monica Lewinsky was a witness in the Paula Jones case?

A. Can I ask my lawyer whether I can respond to that question? Q. Yes. Well, why don't you write that down? Why don't you write that down with your questions? From whom did you learn that Monica Lewinsky was identified as a witness? Actuallywell

A. Let me answer it. Without-well, I don't want to waive any privileges here. I certainly don't want to walk down that road.