Court Widens Presidential Privilege Scope

WASHINGTON — A federal appeals court Tuesday expanded the scope of privileges for presidential communications to include those of senior advisors.

The decision could affect the Clinton administration’s legal battle with the Whitewater independent counsel over a White House lawyer’s notes of conversations with First Lady Hillary Rodham Clinton.

The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, which issued the ruling, said the expanded presidential communications privilege is “not absolute,” however, and can be overcome.

In a 55-page opinion, Judge Patricia M. Wald wrote that the panel was “ever mindful of the dangers involved in cloaking governmental operations in secrecy,” and for that reason sought to strike “a delicate and appropriate balance” between the public’s right to be informed of executive decisions and a president’s right to receive candid advice from aides.

“The very reason that presidential communications deserve special protection . . . is simultaneously the very reason why securing as much public knowledge of presidential actions . . . is of paramount importance,” Wald wrote on behalf of herself and Judges Douglas H. Ginsburg and Judith W. Rogers.

Charles F. C. Ruff, President Clinton’s White House counsel, hailed the decision, saying it “strongly reaffirmed the president’s constitutional right to protect confidential communications both directly with the president and among his senior advisors.”

The panel’s decision came in a nearly 3-year-old legal battle between the White House and independent counsel Donald C. Smaltz over 84 documents withheld by the Clinton administration. The documents were generated during an internal White House investigation of former Agriculture Secretary Mike Espy’s acceptance of gifts from companies he was supposed to be regulating.

Wald’s ruling explicitly gives the president and his advisors more wide-ranging protection than ever before.