The Privilege of Being Hillary
York, Byron
n May 23, 1991, George Bush's White House counsel, C. Boyden Gray, sat in a conference room on the third floor of the Old Executive Office Building. He was there to answer questions from...
...Clinton that the White House balked...
...And many experts who are generally on Starr's side believe there is a good argument for affording the first lady some sort of official status...
...Starr did not suggest that the Clintons' communications with their personal lawyer, David Kendall, were not protected by attorney-client privilege...
...Department regulations forbid Justice, in almost all cases, from representing federal government employees facing federal criminal charges...
...And neither, Starr argues, are Mrs...
...An investigation like Iran-contra "becomes a tug of war, and you use whatever leverage you can...
...Therefore Upjohn does not prove the White House has a right to resist the independent counsel's subpoena...
...Barrett was correct in thinking that a court battle would be a major, time-consuming undertaking...
...Kopf's dissent opens up some intriguing possibilities for experts struggling to predict how the Supreme Court might decide the Clinton case...
...First, if there is evidence of wrongdoing in the notes, a decision forcing the White House to turn them over could prove to be a turning point in the Whitewater investigation...
...While a victory for the Clintons, both sides could see that the Wright decision was excessively narrow and did not settle the larger question of whether the White House was entitled to assert attorney-client privilege...
...If they lose, the president and first 80 July 1997 • The American Spectator lady can produce two sets of useless notes and denounce Starr for wasting so much time and taxpayer money on a pointless, partisan investigation...
...They are federal government lawyers working on behalf of officials who are the subjects of a federal criminal investigation...
...If White House aides forced Senate investigators to jump through hoops for the purpose of frustrating the investigation, it's certainly possible they are doing the same thing to the independent counsel...
...But in truth, the Clintons' argument in their Whitewater brief concerns something known as governmental attorney-client privilege...
...That requirement, Kopf argued, has to be met when the Nixon precedent is applied to other cases...
...The issue has never come up again—until now...
...Because we now declare for the first time that Nixon overcomes the White House privilege if a proper showing is made," Kopf wrote, "Mrs...
...Perhaps the Nemetz notes are different...
...She has an office and a staff in the White House, paid for with funds approved for the pur(Continued on page 78) York (Continued from page 29) pose by Congress...
...That principle can be seen clearly enough in the Justice Department's decision not to represent the White House...
...The subpoena says that if the White House chose to withhold any papers on the basis of executive or attorney-client privilege, it would have to provide Starr a detailed summary of each one, including "description of the subject matter of the document, number of pages, attachments or appendices, [and] all persons to whom the document, its contents, or any portion thereof, has been disclosed, shown, or explained...
...Last month, counsel Charles Ruff—sounding a bit like Boyden Gray before him—said only: "This is where we decided to draw the line...
...On the other hand, there are several scenarios in which Starr emerges the clear winner...
...What did Gray know about conversations between Bush and Secretary of State George Shultz...
...Kopf agreed that Nixon proved "the White House privilege gives way to a grand jury subpoena...
...According to Woodward's sources, "White House aides insisted that 2 1/2 boxes of documents on Trie were so sensitive...that senior committee lawyers would have to come to the executive mansion to review them and could not make copies...
...Unlike executive privilege, which was the subject of the famous Watergate case United States v. Nixon—in which the Supreme Court ruled that the privilege did not protect Richard Nixon from having to give up subpoenaed White House tapes—attorney-client privilege was an untested argument...
...The attorney-client privilege, they argue — correctly— is virtually inviolable in our legal system...
...Judge Wright agreed...
...Whitewater independent counsel Kenneth Starr and the Clinton administration are fighting over notes taken by White House lawyers during conversations with first lady Hillary Rodham Clinton...
...To strengthen its argument, the White House cites a third precedent, Upjohn Co...
...For example, Starr writes, "White House Counsel Peter Wallison produced a diary about relevant events, including the preparation of President Reagan for his Tower Commission interview—a situation far more sensitive than this case because it involved both Presidential communications and concerned foreign affairs...
...I just drew the line," Gray says now...
...In both cases, judges recognized a privilege between local government employees and lawyers...
...Rather, Wright addressed the narrower issue of whether Mrs...
...There have been efforts by some persons and entities to challenge grand jury subpoenas...
...If executive privilege must give way to the needs of a federal criminal proceeding, Starr argues, should not governmental attorney-client privilege—provided it even exists—give way also...
...I got a call from somebody in the White House counsel's office asking if we could represent them," says Andrew Frey, a former Justice Department official who has argued dozens of cases before the Supreme Court...
...If the latter is true, it would be hard to avoid the conclusion that the Clintons are holding out over relatively meaningless notes as part of a strategy to divert and embarrass the independent counsel...
...Clinton's actions in the aftermath of Foster's death...
...Put bluntly, it could be that the Clintons are going all the way to the Supreme Court simply to jerk Ken Starr's chain...
...The New Jersey and Detroitcases were local disputes that did not involve the federal government and did not even vaguely resemble the issue at hand in the Whitewater matter...
...This is the right thing to do for America and the Constitution, and everyone knows that you and your wife have answered all the questions there and have told everybody everything there is to tell, and we ought to do this for the country...
...But according to sources familiar with the matter, when then-White House counsel Jack Quinn wrote to Justice asking that they represent the White House against Starr, the department declined...
...Public officials, the argument goes, have a governmental attorney-client privilege...
...The facts of the case were pretty well established, but at least one significant change in strategy occurred by the time Frey submitted his first brief in support of the White House...
...On the other hand, they might be nothing more than a recitation of the official White House line on Mrs...
...The case became front-page news and even attracted the attention of the television networks, which lately have shown little interest in Starr's investigation...
...Clinton and the president blurred the previously clear dis26 Ju y 1997 • The American Spectator tinction between personal and government lawyers...
...The White House says yes...
...And neither would the warning Kopf included in his dissent—a notice to the present White House and those in the future...
...What did Gray know about the 1986 shootdown of a plane carrying supplies for the contras...
...But, curiously, her decision offered no opinion on whether the notes are protected by attorney-client privilege...
...A doctors' group sued the first lady, saying she was not entitled to keep the workings of her health care task force secret because federal law requires groups that include non-government officials to hold their meetings in public...
...Starr's case also relies on precedents from the Iran-contra scandal...
...The two sides remained at odds for more than a year...
...Like the other judges, Kopf then concluded that "it is a reasonable extension of Nixon to pierce the organizational attorney-client privilege asserted by the White House...
...But there remains a scenario that could prove very troubling for Starr...
...Thus, Kopf wrote that Starr should be compelled to make a similar showing for his subpoena...
...He writes that even the most potentially privileged communications between White House lawyers and Reagan/Bush administration staffers were turned over to independent counsel Lawrence Walsh...
...If that was the case, why claim privilege at all...
...Clinton for her interview with Starr on the subject of Vincent Foster's death...
...The White House has another problem...
...Thus a showdown between an independent counsel and the White House over the issue of attorney-client privilege was avoided...
...and (c) admissible...
...And they added: "We believe the strong public interest in honest government and in exposing wrongdoing by public officials would be ill-served by recognition of a governmental attorney-client privilege applicable to criminal proceedings inquiring into the actions of public officials," the judges wrote...
...After a quick conversation with Bush, Gray reported that the president did indeed wish to assert attorney-client privilege...
...Clinton's belief in this regard was genuine and reasonable (whether or not mistaken) and that the Nemetz and Sherburne notes are therefore protected from disclosure to the grand jury by the attorney-client privilege...
...Instead of all nine, he asked for just two: notes taken by associate White House Counsel Miriam Nemetz at a July 11,1995 meeting held to prepare Hillary Rodham Clinton for her interview with Starr on the Foster issue, and notes taken by Sherburne during and after the first lady's appearance before the Whitewater grand jury on January 26, 1996...
...Provided he could show why he wants the notes, Starr would still win, the grand jury would still get the information, but the Court's decision would have little effect beyond the White House...
...Starr believed that beginning back in March 1995 he had given the White House ample warning that the subpoena was coming...
...Clinton is "the functional equivalent of an officer or employee of the White House...
...Anyone reading Starr's appeal brief could not fail to notice that he devotes only one paragraph to the subject—and that is near the end of his 50-page argument...
...Starr immediately ordered an extensive study of the issue...
...District Court in Arkansas in an attempt to compel the White House to produce the documents...
...The Supreme Court ruled that the privilege protected all the workers...
...They came to me," Clinton said, "and said this is what we strongly believe...
...Instead, the White House based its case entirely on attorney-client and work-product privilege...
...It began in earnest on March 8, 1995, when then-White House counsel Abner Mikva refused Starr's request that the White House waive privilege on the communications of White House attorneys...
...One is a New Jersey case which involved a dispute between a county grand jury and lawyers representing a county agency...
...It does not make sense that they contain anything that would be important to Starr...
...He refused to answer on the grounds of attorney-client privilege...
...But he argued that White House lawyers, who work for the federal government and not for the Clintons themselves, are not entitled to claim a privilege in the face of a federal criminal investigation like Whitewater...
...Second, if the notes turn out to be unimportant, it might someday be revealed that getting them was not Starr's ultimate objective...
...We decided not to litigate," Barrett says...
...Nevertheless, the White House cites the health care case as proof the first lady is a government official...
...The federal government, Starr argues, has responsibilities that are far different from those of private companies...
...All along, the Clintons have attempted to discredit Starr and outlast his patience...
...For example, Stan demanded notes taken by White House Counsel's office lawyers during meetings with Mrs...
...It has been widely reported that Office of the President v. Office of Independent Counsel hinges solely on the issue of attorney-client privilege...
...This case could be the one that determines whether or not they succeed...
...And there is serious doubt as to whether that is the same thing as what we traditionally understand to be attorney-client privilege...
...But when the subject turned to conversations between Gray and the president, the White House counsel stopped talking...
...The answer that seems most obvious to his opponents—that he is trying to hide incriminating evidence that could sink his administration—is not completely satisfactory...
...When they were taken, White House lawyers were prepping Mrs...
...In that event, Starr insisted, the White House should reveal as much as possible about the documents...
...Before any points were argued, however, the White House had to go shopping for lawyers...
...We agree with the [independent counsel]," the judges wrote, "that Nixon is indicative of the general principle that the government's need for confidentiality may be subordinated to the needs of the government's own criminal justice processes...
...for example, the government is routinely required to disclose information to the public that no private firm would ever divulge...
...That sweeping statement was widely quoted in press accounts...
...Louis...
...A standoff ensued...
...Receiving far less attention was the dissent of the third judge, Richard G. Kopf...
...Nixon, Starr continues, surely "believed that his communications with senior advisors were not only confidential as a matter of fact but privileged as a matter of law...
...The White House goes on to cite — approvingly — Boyden Gray's assertion of attorney-client privilege on behalf of George Bush...
...The dispute was resolved when a federal judge ruled that Mrs...
...Starr contends that White House lawyers, who work for the executive branch of the federal government, cannot refuse to cooperate in a criminal probe run by lawyers who also work for the executive branch of the federal government...
...Of course that would not be any comfort for the Clintons...
...We said, The client has to confirm it,'" Barrett continues, saying he asked Gray to talk to Bush to see if the president wanted his counsel to claim the privilege...
...Starr quotes at length from the Supreme Court's decision in United States v. Nixon, in which the court not only ordered Nixon to give up the subpoenaed tapes, but also sketched the limits of executive privilege: A president's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice....We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice...
...Added to that is what appears to be the mood of the Supreme Court: if the recent Paula Jones decision is any guide, the justices are not inclined to recognize wide-ranging privileges claimed by the White House...
...Only when the First Lady is appointed to or assigned specific official duties—as occurred in the health care situation—would it be plausible for the courts to recognize a governmental attorney client privilege....That has not occurred here...
...On June 21, 1996, he delivered a subpoena demanding the White House turn over "all documents created during any meeting attended by any attorney from the Office of the Counsel to the President and Hillary Rodham Clinton (regardless whether any other person was present...
...At this point it is impossible to know what Starr has learned from other sources in the case, but we do know that several figures close to the Clintons have been extremely tight-lipped about the subject, often claiming loss of memory on even the most basic questions...
...he was there asking the questions...
...Doing so, according to the regulations, would create "the likelihood of a conflict of interest between the Department's prosecutorial and representational responsibilities...
...If that happens, the president and his supporters will surely escalate their campaign against the independent counsel...
...The other involved a federal grand jury that issued a subpoena to the city of Detroit...
...Since the Clintons have always maintained that the dispute was not about their attempts to conceal information but rather about the White House's responsibility to preserve essential privileges, one might have expected the Justice Department to defend them in this case...
...So far, White House lawyers 28 July 1997 • The American Spectator have offered no explanation of why they turned over some notes but refused others...
...If the notes contain no significant revelations, he could win the legal battle and still suffer a serious setback in his investigation...
...But the Supreme Court ruled that they were not...
...He might have been even more confident had he known one crucial fact: Gray was bluffing...
...On July 1,1996,, White House lawyer Jane Sherburne wrote Starr's office that she had identified nine sets of documents covered by the subpoena...
...The American Spectator .11A y 19 9 7him to court...
...His brief contains dozens of references to Richard Nixon's attempts to keep White House tapes secret during Watergate...
...In a sense, it was 25 a bargaining tool," Gray continues, "trying to narrow the scope of the inquiry...
...Clinton's...
...My view on this is there is an appropriate and legitimate claim of attorney-client privilege between a government official and a government lawyer if government business is being discussed and the other tests are met with respect to attorney-client privilege," says Theodore Olson, a Reagan administration Justice Department official who wrote an often-cited opinion on attorney-client privilege while serving as head of the department's Office of Legal Counsel...
...And Upjohn concerned a private company...
...Frey's firm, Mayer, Brown & Platt, agreed to take the case at the standard government rate — $99 an hour, peanuts by the standards of top Washington lawyers...
...The White House maintains the conversations are privileged because counsel's office lawyers represent the first lady as part of their job of representing the office of the president...
...While the pundits battled it out over which side was right, the president himself tried to appear above the fray...
...Starr disclosed that his investigation, which had seemed to some observers tobe winding down, was in fact locked in heated confrontations over evidence...
...Showdown Under Seal The battle between Starr and the White House has been going on for more than two years, although rules of secrecy regarding grand jury proceedings kept the public from knowing about the dispute until early May...
...Now consider Jane Sherburne, Jack Quinn, Charles Ruff, and all the other lawyers who have worked in the White House Counsel's office...
...She represents the president on many occasions...
...Circuit Court of Appeals in St...
...But both times the White House turned over the evidence...
...It was an extraordinary statement...
...They could also claim that the absence of incriminating evidence in the notes proves that all along they were battling for principles in which they believed deeply...
...A protracted court fight was not an attractive option...
...In some cases, however, the law does allow the government to pay for private attorneys for employees facing investigation...
...By the time we were brought in," Frey continues, "Starr had flung down the gauntlet...
...After all, executive privilege is rooted in the constitution...
...But if he gives good reason for needing the documents, Nixon demands that the White House turn over the evidence...
...Shortly after his announcement, word of the attorney-client privilege fight began to leak out...
...in Nixon, the Court called it "fundamental to the operation of government...
...Indeed, President Nixon could have invoked this argument," Starr writes, "contending that his communications were privileged because he thought they were privileged...
...For Starr's office, the issue boils down to one question: for whom are the White House lawyers working...
...In Nixon, the Court wrote that before the White House could be forced to turn over evidence, the special prosecutor "must make an initial threshold showing...that the documents are: (a) specifically needed...
...So the notes might contain incriminating material...
...District Court Judge Susan Webber Wright in Little Rock...
...Clinton thought the conversations were privileged at the time they occurred...
...So Starr appealed to the Eighth U.S...
...Can they refuse a federal prosecutor—Stan—who requests information from them...
...And they bought Starr's argument from Nixon...
...On the basis of what we know now, it is impossible to say whether we are headed for another Nixon decision, or just another act in a Whitewater drama that will drag on longer than anyone could have predicted...
...The problem had not arisen during their investigation because Presidents Reagan and Bush—at least up until that point—had ordered their aides not to claim any privilege when dealing with Walsh's prosecutors...
...She may not be a full-fledged government official, but she is clearly something more than a private citizen...
...I remember thinking it was a pretty weak claim, that we would probably win," Barrett says, "but it would be an enormous litigation...
...Clinton relating the grand testimony to Sherburne (who was not allowed inside the grand jury room...
...Clinton was a government employee for the purposes of satisfying the secrecy law...
...I remember looking at the general privilege case law," john Barrett says of his research during Iran-contra, "and not finding any successful invocations by government attorneys against government investigators...
...But when the committee agreed to their demands and sent three top lawyers to see the documents, they found, according to Woodward, that "the boxes contained routine material, much of it previously published...
...What should be regarded as a commendable effort to cooperate with the independent counsel's investigation...hardly proves that there is no underlying privilege to claim," the Clintons' brief says...
...They had a lot to ask...
...4V...
...The secrecy that surrounded the case began to crack in late April, when Starr filed court papers requesting a six-month extension of the Whitewater grand jury in Little Rock...
...Starr also turns to Watergate for an answer to the White House's—and Judge Wright's — contention that the notes are protected because Hillary Rodham Clinton thought the conversations with White House lawyers were privileged...
...Federal government lawyers take an oath to uphold the laws of the United States...
...His staff returned with a 15-page memorandum that concluded the White House had gone too far...
...Refusing the White House request was the only course the department could take, because federal regulations forbid Justice from representing government employees in federal criminal proceedings...
...The White House contends that communications between federal government employees who consult federal government lawyers are just as privileged as those between a private lawyer and a client...
...If anything might be covered by attorney-client privilege, it would be a private meeting between the president and the White House Counsel...
...Indeed, White House spokesmen and surrogates have, in television commentary and newspaper op-ed pieces, presented the case as one in which the first lady is simply fighting for the same rights accorded any other American...
...As opposed as the two positions are, the issue will probably not play a central role in the Whitewater case...
...she wrote that Mrs...
...Finally, the White House faces one more question that complicates its argument...
...From the independent counsel's point of view, none of the cases is particularly persuasive...
...In the end, it is likely Starr will prevail...
...This grand jury has heard extensive evidence of possible obstruction of the administration of justice," he wrote, as well as "concealment and destruction of evidence and intimidation of witnesses...
...They could instead rely on Kopfs reading of Nixon and recognize that the White House has some sort of privilege while also declaring that Starr's needs outweigh it...
...Finally, Starr added, "there have been assertions of privileges which have been or will be the subject of additional grand jury litigation...
...Instead, he might be paving the way for future subpoenas...
...She has not been elected, appointed, confirmed, or hired," he wrote...
...What Now...
...Yet the Court ruled that it had to bend to the needs of the Watergate prosecutor's criminal investigation...
...Governmental entities," its brief argues, "just like private clients, are entitled to have privileged communications with their counsel...
...This has led to grand jury litigation under seal, some of which is ongoing...
...He was there to answer questions from prosecutors representing Iran-contra independent counsel Lawrence Walsh...
...Starr faced the dilemma that had confronted Lawrence Walsh's prosecutors five years earlier...
...But the White House cites just two cases to support its position...
...So the White House has been forced to stitch together an argument from state and local cases that have little to do with the issue in question...
...What, they wanted to know, did Gray discuss with Bush adviser Donald Gregg in the summer of 1990...
...And third, if Starr's tantalizing words of April are any clue, it might be that there are other court fights underway that remain sealed...
...But the judge did not definitively say the first lady could be considered a government employee in all circumstances...
...That is one fight the White House will probably win...
...The independent counsel was coming under increasing public criticism and pressure to wrap things up (although the probe ultimately dragged on for two more years...
...In Upjohn, the question was whether the company's legal counsel could claim that attorney-client privilege protected its communications with all Upjohn employees, or just a small group of top managers...
...Even if one assumes that that is not the complete truth, one must still ask precisely why Clinton is fighting this fight...
...In mid-1991, Walsh's investigation was in its fifth year and had spent tens of millions of taxpayer dollars...
...As far as Sherburne's notes are concerned, does Starr have any evidence that they reveal some deep secret...
...Barrett and the Iran-contra team faced a 0 dilemma: should they accept Gray's refusal to answer or take "1 BYRON YORK is an investigative writer with TAS...
...The subpoena specified conversations concerning the late deputy White House counsel Vincent Foster, Whitewater partner James McDougal, Madison Guaranty Savings & Loan, Whitewater Development Corporation, Clinton accuser David Hale, and Hale's company, Capital Management Services...
...How, Starr contends, could today's White House claim of privilege be stronger than that considered by the court in the Nixon case...
...So Justice suggested that the White House find its own lawyers, and the taxpayers would foot the bill...
...But this time, the independent counsel chose to take the matter to court...
...If, as the White House contends, the independent coun78 July 19 9 7 • The American Spectator sel is simply on a "fishing expedition," then he will not be able to show reason to overcome the privilege and will not be given the notes...
...It was a cost-benefit thing...
...If she was lying to the grand jury, it's pretty damn unlikely that she would tell a couple of White House Counsel's lawyers that she had just lied to the grand jury," says Andrew Frey, the attorney who is preparing the Clintons' arguments...
...In November of last year, Wright, a former law student of Bill Clinton's, ruled in favor of the White House...
...But it raises issues that might become crucial to the Supreme Court's decision in the case...
...for example, they enlisted Foster to handle a variety of tasks related to their Whitewater investment...
...Is she a government employee or not...
...Judges Pasco Bowman and Roger Wollman were unpersuaded by Upjohn and the local cases the White House cited as proof of the existence of governmental attorney-client privilege...
...Still, the White House stood its ground...
...Starr's strategy seemed to signal that by early last year he had chosen the counsel's office as an opening through which he could pursue the first lady...
...Starr's lawyers repeated that assertion to the White House "on innumerable occasions" since March 1995, according to the court papers...
...Consider the White House's actions as described last month in an article by Washington Post reporter Bob Woodward...
...Clinton, like other first ladies before her, performs some of the functions of a government official...
...After Barrett did some preliminary looking into the issue—he studied Watergate, the independent counsel law, and cases from the past—he became confident he could prevail in court...
...We were told by the Department of Justice that we had no such privilege...
...Starr knows what went on when the first lady appeared before the grand jury...
...In briefs submitted for the appeals judges, both sides laid out the complex arguments that are the basis of the case that will likely be decided by the Supreme Court...
...The government, his argument goes, cannot stonewall itself...
...His position is built on precedents that have evolved during two decades of high-profile Washington investigations, while the Clintons have been unable to cite much evidence that clearly supports theirclaim...
...And if they win, they can claim the same thing...
...But Kopf writes that another provision of the Nixon decision should play a critical role in the Whitewater case...
...Finally, last summer, Starr made his move...
...27 Privilege...
...The case of Office of the President v. Office of Independent Counsel, likely headed for a Supreme Court showdown later this year, involves another president's assertion of the privilege—against another independent counsel under criticism for taking years to complete an investigation and spending millions of public dollars in the process...
...A few days later, she wrote again, announcing that the White House would refuse to provide any of them, citing both executive privilege and attorney work-product privilege...
...As a matter of fairness," he wrote in later court papers, "the office of independent counsel long ago (before either of the two sets of notes at issue here were created) put the White House on specific notice that we did not agree that communications between a witness and the White House Counsel's office were privileged from disclosure to a federal grand jury...
...We were trying to get our work done as quickly as possible...
...Suppose the justices choose not to go along with the appeals court majority in making a far-reaching declaration on the subject of governmental attorney-client privilege...
...We reviewed a bunch of documents and asked a lot of questions," remembers associate Iran-contra independent counsel John Barrett, who took the lead in interviewing Gray...
...Describing the dealings of the White House Counsel's office with Senator Fred Thompson's investigative committee, Woodward wrote that the investigators wanted to see documents relating to fundraising scandal figure Charlie Trie...
...Because [Justice] didn't want to take sides in this dispute, which is in theory at least an intra-govemmental dispute, we are representing the institution of the White House...
...The attorney-client claim was substantial leverage...
...if he wins in the Supreme Court, the White House will not be able to claim attorney-client privilege in response to requests targeting more crucial documents...
...We also believe that to allow any part of the federal government to use its in-house attorneys as a shield against the production of information relevant to a federal criminal investigation would represent a gross misuse of public assets...
...Just what is the status of Hillary Rodham Clinton...
...From that, the White House reasoned that communications between the White House Counsel and White House staffers must also be protected...
...It was only when Starr asked for notes involving Mrs...
...On August 19, Starr went to U.S...
...At several times during the Whitewater investigation, Starr has subpoenaed notes taken by White House attorneys during meetings with White House staffers...
...There has never been a case involving a White House claim of attorney-client privilege versus the right of an independent counsel to subpoena documents...
...While there is a privilege, it is not one that can be asserted against the United States...
...Clinton's then-chief of staff, Margaret Williams, and, on another occasion, notes from a meeting with former counsel Bernard Nussbaum...
...Most experts believe that means the government lawyers' client is always the United States and not any particular employee of the government...
...Clinton would consult with White House lawyers at her peril in the future...
...b) relevant...
...But the Reagan White House gave the diary to Walsh (who quoted it many times in the final Iran-contra report...
...Lawyers at Justice said that since the independent counsel is part of the Department of Justice, it would The American Spectator - July 1997 be impossible for them to take the White House's side in the dispute...
...That question was addressed—but only partially settled—in a 1993 court case...
...After all, what could be in the documents...
...By the White House's reasoning, the notes would be protected by governmental attorney-client privilege...
...On May 6, during a visit to Mexico, he said White House lawyers took the lead in urging him to resist Starr...
...But since federal regulations instruct officials to avoid the conflict created when the government both prosecutes and defends itself, the White House position seems at odds with long-standing principles and practices...
...The wording of the subpoena makes it clear that Starr envisioned the White House would claim privilege and refuse to cooperate...
...Starr has another view...
...v. United States, a 1981 case in which the drug manufacturing company resisted a subpoena from the Internal Revenue Service...
...To the Clinton White House, that proves nothing...
...It is entirely possible that, as the White House contends, the notes are simply a record of Mrs...
...The Judges Decide In April of this year, the appeals court ruled two to one in favor of Starr, ordering the White House to hand over the documents to the independent counsel...
...In late March, Starr sent his first warning...
...The Lessons of Scandals Past While the White House relies on a mix of cases from states, local governments, and private companies, Starr bases much of his argument on precedents from earlier White House scandals...
...Who's Got The Privilege...
...When he asserted attorney-client privilege," Barrett recalls, 'we said, 'Who's the client?' and he said, 'The president.'" Barrett wanted proof...
...The uncertainty is enough to frustrate even the most dedicated White-water watcher...
...who knows what they might be about...
...But the owner of the privilege is the United States...
...But with each question he answered, it seemed the prosecutors wanted more...
...But it fails to mention that neither Gray nor the Iran-contra prosecutors believed such a claim would hold up in court...
...That remains true today...
...At that point, the White House, which had insisted the litigation remain secret through 1995 and 1996, relented and allowed the court papers to be made public...
...Each time, the papers say, "White House attorneys...consistently stated the opposing view...
...The case—still under seal, still a complete secret to the public—went before U.S...
...In doing so, they have lured Starr into a protracted and high-profile legal battle in which he might emerge the winner and still end up with nothing...
...The Clintons no longer claimed that the Sherburne and Nemetz notes were protected by executive privilege...
...When I objected, I knew I would probably lose if it ever went to court," Gray says...
...Wright decided the first lady did indeed consider them privileged and wrote, "The court concludes that the White House's and Mrs...
...According to court papers, his office "informed Jane Sherburne and Miriam Nemetz of the White House Counsel's Office that the [Office of Independent Counsel] did not agree that governmental attorney-client and work product-based privileges were sustainable in response to a federal grand jury subpoena...
...We had already given them the most exquisitely confidential information that you could possibly imagine," Gray recalls...
...He answered most of them...
...It has long been known that both Mrs...
Vol. 30 • July 1997 • No. 7
