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White House Asks High Court to Protect Whitewater Notes

By Joan Biskupic
The Washington Post
WASHINGTON

Lawyers for the White House Monday asked the Supreme Court to intervene to protect notes attorneys took in conversations with first lady Hillary Rodham Clinton relating to a failed Arkansas real estate venture now under investigation by independent counsel Kenneth W. Starr.

If the notes must be surrendered, White House attorneys say, it would violate historic notions of attorney-client privilege and "substantially impair" the ability of all federal agencies to obtain sound legal advice, particularly in the face of independent counsel investigations.

The White House appealed an opinion by the 8th U.S. Circuit Court of Appeals last month ordering the administration to turn over the notes relating to the Clintons' involvement in the Whitewater land deal.

The divided three-judge panel said the usual attorney-client privilege did not extend to government lawyers' notes when sought by a grand jury. The appeals court emphasized that public interest would be "ill served by recognition of a governmental attorney-client privilege in criminal proceedings inquiring into the actions of public officials."

Although Starr has asserted Hillary Clinton is not a "client" of the White House lawyers, the larger question - and the one presented to the Supreme Court - is whether a governmental attorney-client privilege would exist in the context of grand juries, irrespective of who claims to be a "client."

The case is a byproduct of the continuing Whitewater investigation by Starr, who is expected to file his response with the Supreme Court by May 29.

A resolution by the justices could affect parts of the Whitewater probe and, more broadly, determine whether conversations between government lawyers and agency officials are shielded from grand jury investigations.

"It would be markedly more difficult for government officials to obtain the candid and informed legal assistance necessary to the performance of their functions," if the lower court opinion stands, wrote Andrew L. Frey, a private lawyer hired by the White House to defend its position before the high court.

The Supreme Court is likely to announce by the end of June whether it will hear the case or let the lower court ruling stand. If the justices were to take the dispute, it likely would not be heard until next fall and a ruling might not come until sometime in 1998.

Starr is seeking a set of notes made July 11, 1995, during a meeting involving Hillary Clinton, her personal lawyer and two White House attorneys. They discussed Starr's investigation into the handling of documents in White House lawyer Vincent Foster's office after his death. The notes were taken by Miriam Nemetz, associate counsel to the president. The meeting occurred a few weeks before a White House aide testified she found long-subpoenaed Rose Law Firm billing records in the residence.

The second set of notes was taken by former special White House counsel Jane Sherburne on Jan. 26, 1996, the day Hillary Clinton appeared before a federal grand jury to testify about the mysterious reappearance of the billing records in the White House residence. Both meetings were attended by private lawyers for the first lady.

Starr argued that the integrity of the criminal justice process overrides any administration need for confidentiality in conversations.The 8th Circuit agreed, rejecting the assertion of an attorney-client privilege and saying "disclosure" should be favored over "concealment." The appeals court spurned an argument that the notes should be protected because the lawyers took them in the process of preparing a client for legal proceedings - known as the "work product doctrine" - because, the court said, the notes were not prepared "in anticipation of litigation."

The 8th Circuit relied in part on the 1974 case of United States vs. Nixon, in which the Supreme Court rejected Richard Nixon's assertion of an executive privilege and ordered Watergate tapes turned over to a special prosecutor.

Lawyers for the White House say the appeals court was reading the Nixon case too broadly, and they contend they want only to ensure that government lawyers are afforded the same privilege as lawyers in private practice - to communicate in confidence with clients.

Starr has noted the White House already has produced numerous sets of notes taken by White House attorneys in interviews of White House employees, including former White House counsel Bernard Nussbaum and Margaret Williams, chief of staff to the first lady.