The Last Testimony of vincent Foster
York, Byron
THE LAST TESTIMON' WHAT DID THE LATE VINCENT FOSTER TELL HIS LAWYER ABOUT TRAVELGATEAND HILLARY RODHAM CLINTON'S ROLE IN THE SCANDAL? KENNETH STARR NEEDS TO KNOW—BUT FOSTER'S LAWYER IS FIGHTING...
...The only probe Foster did not foresee was the biggest of all, that of independent counsel Starr...
...If Foster refused to answer, citing the Fifth Amendment, Starr could have given him immunity and forced him to either answer or face jail for contempt of court...
...They talked for about two hours...
...But even if the notes do not significantly change the story of Travelgate, they might well enrich our understanding of Vince Foster's tortured last days...
...But he argues that if Foster had lived, he undoubtedly would have been a crucial witness in the Travelgate investigation...
...Finally, Nussbaum said let's just wait and see...
...And at times, his mind seemed to race as he imagined future investigations: Possible inquiries: Resolution re inquiry in House Judiciary GAO invn —scope...
...The FBI lied in their report to the AG...
...But by the time Foster sought legal advice, he still had reason to be concerned...
...I said, 'Well, it's up to you, but if you feel comfortable doing that...I have no problem with you going out and talking to somebody else...
...When that happened, who knew what holes in the story would begin to appear...
...At stake is one of the last mysteries of the Travelgate scandal—and of Vincent Foster's life...
...Once this made it onto the first lady's agenda, Vince Foster became involved," Watkins wrote in his famous "soul cleansing" memo detailing events leading up to the The American Spectator • June 1998 firings...
...33...
...But he went along with the firings...
...Foster made it clear he intended to act quickly...
...Hamilton refused to give them up, saying they were protected by attorney-client privilege...
...The Court also agreed to put the issue on a very fast track: oral arguments will take place on June 8, with a decision expected before the Fourth of July...
...Now Starr is trying to get over the last of many roadblocks the Clintons have erected to hide the facts about Travelgate...
...And she leaned on Foster...
...Late last year, a three-judge panel of the U.S...
...Foster that our conversation was a privileged conversation, we would not have had that conversation and there would be no notes that are the subject of the situation today...
...The Last Tale of Travelgate Of course, the arguments on both sides do not answer the main factual question here: What is in the notes...
...Foster wasn't convinced, and the two men went back and forth...
...The law gives prosecutors great power to extract facts from even the most reluctant witnesses, Starr's brief argues, and that power does not disappear if the witness has died: The client's interest in his own reputation and in protecting friends and associates from liability cannot justify nondisclosure of information after death because it does not justify nondisclosure of information before death...
...I said..:if you feel more comfortable, Vince, in having a lawyer represent you, you can talk to somebody about representing you...
...District Court in Washington voted 2-1 in favor of Starr...
...Now Hamilton is appealing, and the Supreme Court has agreed to hear the case...
...And then there is the simple fact that the justices agreed to hear Hamilton's appeal, which they likely would not have done had they thought the circuit court decision was the right solution...
...More than anyone else involved in the scandal —more than Hillary Rodham Clinton, more than Bernard Nussbaum, more than the Clintons' damage control team —Foster understood the potential significance of Travelgate...
...She made sure chief of staff Mack McLarty knew she wanted action...
...it was only after Podesta learned elsewhere of the first lady's involvement that Foster conceded her actions...
...We're the ones who represent the White House...
...Several of the justices have been private practice lawyers in the past and might instinctively favor protecting the privilege...
...Despite the claims of the Clintons' most ardent supporters, Starr is a sure winner in all those battles...
...ing communications after death are high," judges Stephen Williams and Patricia Wald decided: Obviously, the death removes the client as a direct source of information....Although witness unavailability alone would not justify qualification of the privilege, we think that unavailability through death, coupled with the non-existence of any client concern for criminal liability after death, creates a discrete realm (use in criminal proceedings after death of the client) where the privilege should not automatically apply...
...He recounted the events leading up to the firings...
...Hillary's role was minimized in the management review," says a congressional investigator familiar with the story...
...On the other hand, the fact that Hamilton is willing to fight so hard —to take the issue all the way to the Supreme Court—makes them suspect that something is in there...
...Foster regularly informed me that the first lady was concerned and desired action—the action desired was the firing of the Travel Office staff...
...After that, he specifically referred to the Travel Office in several places: • No one in the White House, to my knowledge, violated any law or standard of conduct, including any action in the travel office...
...Whatever other purposes he might have had when he went to see James Hamilton remain a mystery, to be solved only by the Supreme Court...
...Unless clients know before consulting their lawyers exactly what information the privilege protects—knowledge denied by the court's balancing test—few will confide candidly and fully," Tatel wrote...
...Foster himself, Nussbaum, and maybe everybody in the White House counsel's office would need lawyers, which would put an enormous strain on the counsel's operation...
...The press is covering up the illegal benefits they received from the travel staff...
...Watkins noted that there would be "hell to pay" if her wishes were not followed...
...during the discussion, BYRON YORK is an investigative writer with TAS...
...Starr went to the U.S...
...Rather than making any general rules, they suggested a "balancing test" under which a judge would review any contested material in private before deciding whether it should be disclosed...
...If a client knows his secrets could be divulged after he dies, he might be less likely to tell the lawyer everything he knows — thereby harming his own defense...
...As it turned out, Foster had little to worry about from the White House report...
...No one denies the notes would be protected by attorney-client privilege were Vincent Foster alive...
...But Foster was still worried...
...If nothing is in the notes, why would Hamilton and his firm, Swidler & Berlin, incur all the litigation costs with no client to defend —or pay the bills...
...Why wouldn't they instead seek some sort of compromise—perhaps suggesting that a judge review the material to see what is relevant to Starr's investigation—and avoid a confrontation...
...31 NO MATTER WHO MIGHT ASK QUESTIONS, FOSTER SEEMED DETERMINED TO CONCEAL THE TRUTH ABOUT HILLARY CLINTON'S INVOLVEMENT...
...There are compelling arguments on both 30 June 1998 • The American Spectator Of VINCENT FOSTER sides...
...But at the same time there is an interest in law enforcement, which Barrett says cannot be overlooked...
...Hamilton acknowledges that there is one area where the attorney client privilege is routinely held not to apply after death: in cases of wills and testaments...
...Last year, Starr won a slam-dunk victory when the Court refused to even hear the administration's argument for its attempt to use attorney-client privilege as a basis for refusing to hand over the notes of two White House lawyers (see "The Privilege of Being Hillary," TAS, July1997...
...In his notebook, Foster took care to support the first lady...
...And in his memoir disgraced Clinton associate Webster Hubbell recounted Foster's complaint that the first lady would snap, "Fix it, Vince...
...In his dissent, Judge David Tatel rejected even that small opening in the privilege...
...Podesta told congressional investigators that Foster did not reveal his conversations with Mrs...
...Nussbaum remembered in a deposition given to congressional investigators in 1996...
...Later this year, the Court will be asked to rule on the president's claim of executive privilege in the Monica Lewinsky investigation...
...For the most part, their efforts have failed, although it took thousands of questions and subpoenas and document requests to uncover facts that could have been easily learned from a more cooperative White House...
...Soon afterward, Foster contacted James Hamilton, a friend of the Clintons and Washington lawyer who had done some scandal-containment work for the 1992 campaign (he looked into the issue of Hillary Rodham Clinton's work for Madison Guaranty Savings and Loan...
...Hamilton argues that the privilege has to extend beyond death for a client to feel totally free to confide in his lawyer...
...Court of Appeals in Washington, which in August of last year ruled in favor of the independent counsel...
...Clinton's involvement...
...On the very...
...Nussbaum didn't think it was necessary...
...At one point in this discussion he said, 'Do you mind if I go out and talk to somebody, if I get a lawyer on this thing...
...The benefits the legal system gains through recognizing the privilege posthumously outweigh whatever damage might flow from denying information to the factfinder in a particular case...
...When the client is alive, he must testify truthfully as to all the facts—regardless of how harmful those facts are to his reputation or to the interests of others...
...Even though he refers to his own "ignorance" and "inexperience," one is struck today by the clarity and perceptiveness of Foster's understanding of the ways of Washington...
...In addition, even though criminal liability does end at death, a client might nonetheless be concerned about his reputation and that of his family, which could be damaged by disclosure of privileged information...
...It is the latest— and certainly not the last—of an extraordinary round of battles between Starr and the White House over issues of privilege...
...Starr also points out that not only does a dead client no longer have any criminal liability, he no longer enjoys some benefits of the law—for example, the protection against defamation...
...What did Nussbaum think about hiring an outside firm to represent the office...
...But the Court might well disagree...
...first page, he wrote just one word: "Confidential...
...There was no intent to benefit any individual or specific group...
...A Dead Issue Whatever Foster said to Hamilton, the court case has come down to a single question: Does attomey-client privilege extend beyond the death of the client...
...All are questions Hamilton declines to answer...
...What followed was page after page chronicling Foster's growing fear that Travelgate might become a major problem for the young Clinton administration...
...Clinton's pressure was hard to resist...
...And Starr is also fighting against the newly minted "protective function privilege" asserted by the Secret Service, the fanciful mother-daughter privilege imagined by the Lewinsky family, and the even more fanciful bookseller-customer privilege conjured up by the store that sold Lewinsky a novel that she may have given to the president...
...Foster arranged to meet with Hamilton on July 11, a Sunday...
...On July 20, Foster drove to Fort Marcy Park outside Washington and shot himself...
...In December 1995, a grand jury subpoenaed the notes as part of Starr's investigation of the circumstances of Foster's death...
...But he also knew that as of July 3.993, no one at the White House had been questioned under oath about the Travel Office firings...
...But the Foster/Hamilton case might be different...
...Tort claim for ? slander No matter who might ask questions, Foster seemed determined to conceal the truth about Mrs...
...if we need more people, we'll hire more people...
...ace% Wonied By the time he met with Hamilton, Foster was deeply worried that a congressional—and perhaps even a criminal — investigation of the Travel Office firings would damage not only his own reputation but that of Hillary Rodham Clinton...
...But the judges did not favor opening up a broad exception to attorney-client privilege...
...Hamilton took three pages of notes...
...Clinton...
...That secrecy began when Foster was interviewed by presidential assistant John Podesta for the internal White House "management review" of the firings...
...In December 1996, a district court sided with Hamilton...
...The fundamental purpose of the privilege, Hamilton writes in his brief, is "to encourage full and frank communication between attorneys and clients...
...The GOP has lied and misrepresented its knowledge and role and covered up a prior investigation...
...Although Hamilton refuses to discuss the notes —and in an interview with TAS declined to make any on-the-record comments—he vividly portrayed that anxiety during a court appearance last year: I am not certain of why Mr...
...John's University...
...When the scandal blew up in the administration's face, Foster began jotting down his thoughts in a notebook...
...DOJ referral to public integrity section...
...When he went to Hamilton, he knew that Podesta had been a good soldier and kept the lid on, but he also knew that more would come out," the investigator says...
...He said, 'I will call Jim Hamilton to sort of represent me at least initially with respect to this," Nussbaum recalled...
...He feared a General Accounting Office investigation, and there was one...
...The costs of protect32 June 1998 • The American Spectator IF FOSTER HAD LIVED, STARR COULD HAVE CALLED HIM BEFORE A GRAND JURY TO UNCOVER THE SAME FACTS HE TOLD HAMILTON...
...To suggest that people don't care what happens to their reputations after death, Hamilton writes, "wars with the fact that people write wills, establish trusts, buy life insurance and burial plots, establish foundations, endow chairs, and write memoirs—actions evincing concern for what happens to the well-being of others and their own reputations following death...
...In the now-famous "suicide note" found torn into pieces in his briefcase, Foster seemed to be referring to Travelgate when he began by writing "I made mistakes from ignorance, inexperience, and overwork" and "I did not knowingly violate any law or standard of conduct...
...Today, nearly five years later, the notes are the subject of an upcoming Supreme Court confrontation between Hamilton and Whitewater independent counsel Kenneth Starr...
...feel free...
...Let's take care of that, Nussbaum said, and put this off until later...
...He dreaded dragging [Hillary] into it...
...KENNETH STARR NEEDS TO KNOW—BUT FOSTER'S LAWYER IS FIGHTING ALL THE WAY TO THE SUPREME COURT...
...For his part, Starr does not dispute the fact that the notes would be privileged if Foster were alive...
...Starr would have been able to call Foster before a grand jury and uncover the same facts Foster presumably told Hamilton...
...By many accounts, Mrs...
...On the one hand, The American Spectator • June 1998 Starr's investigators believe that, given all the other information they have, it is unlikely the notes will change their fundamental understanding of Travelgate...
...There are some very good arguments on Hamilton's side," says John Barrett, a former Iran-contra prosecutor who now teaches law at St...
...even though Starr has a good case, victory is by no means assured...
...So when he met with Hamilton, Foster was deeply worried about keeping the White House secrets secret...
...And he feared a lawsuit, and there was one of those, too...
...That's our job, he told Foster...
...On the next, he wrote, "Attorney client privileged in anticipation of litigation...
...Rather, they seemed to propose cracking the door just a bit in cases of great importance...
...And as far as last wills and testaments are concerned, Starr asks a reasonable question: If an attorney can reveal once-privileged information for the purpose of deciding who inherits what, why shouldn't he reveal facts relating to a criminal case, which is far more important than a simple probate matter...
...There's a lot of work to be done—an opening on the Supreme Court to be filled, a new director of the FBI to be appointed...
...But the Court will be asked to decide whether the privilege exists even when the client is dead...
...Foster took his own life, even though I think it's because of the taxing of his reputation and his fear about the trial of this investigation....But I am totally certain, I am totally certain of one thing....If I had not assured Mr...
...In those, if a dispute arises, an attorney is normally allowed to reveal the dead client's intent in the disposition of his possessions...
...or "Handle it, Vince...
...Congress, Foster said, was sure to investigate the firings in the White House Travel Office...
...My view," he continues, "is that in some extraordinary circumstances, the law enforcement interest is a weightier interest and can trump the general interest without completely gutting the reasons why we have attorney-client privilege in the first place...
...Even in the realm of criminal proceedings (including grand jury proceedings)," they wrote, "this exception should apply only to communications whose relative importance is substantial...
...Foster wanted more than anything to conceal the first lady's role, which is now widely known...
...He feared a congressional investigation, and there was one...
...You want people to have legal assistance, and the message that the privilege dies with you is not confidence-building...
...The first lady, apparently acting on behalf of her friend Harry Thomason, pressed hard for the firings...
...At this point, the coverup hardly seems worth it...
...in his notes, he wondered whether there was any real evidence that the staff was guilty of wrongdoing, as Thomason and the first lady contended...
...BYRON YORK n the first days of July 1993, Vince Foster brought up an idea with White House counsel Bernard Nussbaum...
...But Foster was uneasy about the rush to fire the Travel Office staff...
...Also, much of the legal profession is on Hamilton's side: the American Bar Association, the American College of Trial Lawyers, and the National Association of Criminal Defense Lawyers, among others, have filed briefs supporting Hamilton...
...There is no doubt that Travelgate was a critical factor in Foster's desperation...
...But Hamilton argues that this should not be a matter of great concern because in those cases the dead client would have wanted his wishes known and therefore would not be harmed by disclosure...
...He feared a Justice Department investigation, and there was one...
...Legal experts say it is impossible to guess which way the Supreme Court will decide...
...He carefully reconstructed his own role...
...when she wanted something done...
...She told White House administrator David Watkins that she wanted to get "our people" into the office...
...Defend management decision," Foster wrote, "thereby defend HRC role whatever it was in fact or might have been misperceived to be...
Vol. 31 • June 1998 • No. 6
