Bernard Nussbaum invoked executive privilege when, as White House counsel, he denied Justice Department investigators access to some of Vincent Foster's papers after Foster committed suicide. When Nussbaum testifies before the Senate Whitewater Committee, he should be pressed to explain why he thought that response was justified.
If the White House had no grounds for invoking executive privilege across the board before, it has none now in its negotiations with the Senate committee on access to Foster's private files.
When properly used, executive privilege exempts the executive branch from disclosure requirements that apply to ordinary citizens.
Though not specifically mentioned in the Constitution, executive privilege is grounded in the doctrine of separation of powers - the need of each branch of government to be independent from the other two.
If confidential communications between high federal officials and their advisers were not protected by executive privilege, candor would be a casualty.
But when national security and military and diplomatic secrets are not involved, executive privilege is neither absolute nor unqualified.
While most often invoked to protect the executive branch from congressional demands, executive privilege may also be used against judicial processes, as President Richard M. Nixon tried to do, unsuccessfully, during Watergate.
But it cannot be used to insulate one branch of government from one of its components. The Justice Department is part of the executive branch.
Insofar as the Foster files concerned President Bill Clinton's personal legal and financial matters, they are far outside the scope of executive privilege. Since these papers did not involve the operation of the executive office of the president, law enforcement officials were entitled to see them.
Nussbaum and his defenders have also argued that the Justice Department investigators were not entitled to see the Foster files on the ground of attorney-client privilege. This too is a dubious claim.
When Foster joined the White House staff as deputy counsel to the president, he changed clients. The moment Foster started representing the Office of the President, he should have stopped working on Bill Clinton's personal affairs, especially those that could give rise to conflicts of interest between Foster's obligation to the government and to his private client.
Nonetheless, it appears that Foster went on working on Clinton's personal matters, including Whitewater and the preparation of tax returns.
Even if this private work for Clinton and Hillary Rodham Clinton did not deprive the federal government of his services - if the government did not in effect subsidize Clinton's private life - the dual representation of the presidency and the private Clinton was fraught with peril. …