Justice Dept. Sides With Clinton on Ruling

WASHINGTON — Siding with the White House in its dispute with the Whitewater independent counsel, the Justice Department urged the Supreme Court Friday to review a ruling that would force two White House lawyers to turn over notes of their conversations with First Lady Hillary Rodham Clinton.

“The president must have access to legal advice that is frank, fully informed and confidential,” said Seth P. Waxman, a deputy solicitor general. “Contrary to the court of appeals’ view, attorneys in the government, like their counterparts elsewhere, have duties of loyalty and confidentiality to their client.”

The justices will meet in about two weeks to consider the Clintons’ pending appeal. If they agree to hear the appeal, that action would delay until next year a final ruling on the fate of the confidential notes.

If the justices deny the appeal, however, it would force the two attorneys to give their notes immediately to Independent Counsel Kenneth W. Starr.

Starr has said the notes are crucial to his investigation into whether Mrs. Clinton may have obstructed justice by hiding billing records of her work at the Rose Law Firm in Little Rock, Ark. A box containing those records was discovered belatedly, sitting on a table in the family quarters of the White House.

This latest installment in the now long-running dispute between Starr and the Clintons has turned into a legal fight over whether government lawyers have an “attorney-client privilege” that shields their work from outside investigators.

The Clintons maintain that they do. Starr disagrees. In April, a U.S. appeals court in St. Louis sided with Starr on a 2-1 vote.

“The general duty of public service calls upon government employees and agencies to favor disclosure over concealment,” wrote Judge Pasco Bowman in rejecting the claim of confidentiality.

In one sense, the Justice Department’s decision to side with the White House is no surprise. The top officials of the department, including Waxman, are appointees of President Clinton.

The department usually acts as the prosecutor of federal crimes, however, and normally would lean to the prosecution’s view of the matter.

But nothing about the pending case is normal. With the filing of the brief late Friday, the court now has three parties before it which can or do claim to represent “the United States.”

Starr has asserted that he represents “the United States.” As the independent counsel, he has said, he possesses the legal right to “handle all aspects of [this] case in the name of the United States.”

The president heads the executive branch and speaks for the United States but in this case, Clinton hired a private law firm to file his appeal on behalf of “the office of the president.”

Weighing in Friday, the Justice Department filed its friend-of-the-court brief speaking “for the United States.”

The brief stops short of supporting the president’s claim of absolute confidentiality. Government lawyers have a “duty to report information concerning criminal violations,” the brief said, and that duty could require them to reveal what is learned in a private conversation.

The brief also does not grapple with another complication in the case (Office of the President vs. Office of Independent Counsel, 96-1783).

It is not the president himself, but the president’s wife who is the target of the investigators. Nonetheless, the briefs on the Clintons’ side assume that the same standard prevails for both.