High Court Rebuffs Privacy Claim for First Lady’s Notes

WASHINGTON — In a surprising rebuff to President Clinton, the Supreme Court refused Monday to review a ruling that requires the White House to turn over confidential notes of conversations between First Lady Hillary Rodham Clinton and two White House lawyers.

The court’s decision, issued in a one-line order, not only cleared the way for Whitewater independent counsel Kenneth W. Starr to obtain the disputed notes--which the administration turned over Monday afternoon--but gave him new standing to seek other documents held by the White House.

Starr is reportedly trying to determine whether Mrs. Clinton lied or obstructed justice by concealing her billing records from the Rose Law Firm in Little Rock, Ark. Now he will be able to compare her answers under oath with her private comments to her lawyers in meetings before and after her questioning by Starr.

Mrs. Clinton had said she did not know where the missing billing records were, nor could she explain how they suddenly appeared on a table in the White House living quarters.

More broadly, the high court’s refusal to hear the Clintons’ appeal is likely to give Starr a green light to seek more White House notes and documents. Under the ruling, Mrs. Clinton’s conversations with lawyers on the White House payroll--as opposed to her private lawyers--are not confidential.

The high court’s action also sounds a note of warning for state and local officials. Until now, most have probably assumed that conversations with top staff lawyers were deemed confidential.

But the U.S. 8th Circuit Court of Appeals in St. Louis rejected the notion that the traditional attorney-client privilege covers government lawyers. Although its ruling stands as the law only in seven Midwestern states, judges elsewhere may follow its reasoning.

The immediate impact will be felt in the White House where, until recently, the workings of the inner sanctum had been shielded from outsiders by two broad legal privileges.

One is “executive privilege,” a claim used unsuccessfully by President Nixon when he sought to shield the secret tapes of his conversations that ultimately forced him from office.

Perhaps worried by the echoes of Watergate, the Clintons chose not to cite executive privilege when the Whitewater prosecutor sought “all documents created during any meeting” attended by “any attorney” from the White House.

Instead, the Clintons cited the even more venerable “attorney-client privilege” as a defense against this subpoena. The Supreme Court, which once described this as “the oldest of the privileges of confidential communications known to the law,” had said it guaranteed that clients could speak candidly with their lawyers.

Starr wanted the notes taken by White House lawyers of their conversations with Mrs. Clinton immediately before and after he questioned her about the suicide of Deputy White House Counsel Vincent Foster.

A federal judge in Little Rock, based on Mrs. Clinton’s claim of attorney-client privilege, blocked Starr’s subpoena. Starr appealed and won a broad ruling on April 9 from the U.S. appeals court in St. Louis, asserting that the traditional attorney-client privilege did not cover government lawyers.

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“We believe the strong public interest in honest government and in exposing wrongdoing by public officials would be ill-served,” wrote Judge Pasco Bowman, if courts “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.”

Although the first lady was free to consult her private lawyers in confidence about the Whitewater matter, Bowman said, she had no shield of secrecy when members of the White House counsel’s office joined the meetings.

In May, a new team of private lawyers working for the White House called this “an extraordinary and unprecedented decision” and appealed to the Supreme Court. They said the ruling, unless reversed, would make it difficult for all future chief executives to “secure sound legal advice” from White House lawyers.

The ruling also called into question whether governors, mayors and other state and local officials had a legal privilege to speak confidentially with lawyers on the government payroll.

The president’s appeal was joined by the Justice Department and supported by a friend-of-the-court brief filed by six former White House legal advisors, half of them Republicans and half Democrats.

Starr urged the court to reject the appeal, arguing that it would only delay his investigation.

In a long list of orders released Monday morning, the justices simply denied the appeal in Office of the President vs. Office of Independent Counsel, 96-1783.

As is customary in such actions, the court offered no explanation for its refusal to hear the case. One possibility concerns the unusual status of the first lady. While the appeal was filed on behalf of “the Office of the President” and concerned the status of White House lawyers, the case did not directly concern the president himself, but rather his wife’s meetings to discuss an investigation of financial controversy that took place in Arkansas.

Still, it marked the second time in a month that Clinton had been dealt a defeat by the high court. In the Paula Jones case, the court ruled, 9 to 0, that the president has no immunity while in office from private lawsuits.

White House Counsel Charles Ruff, the fifth lawyer to hold that post in the five years of Clinton’s presidency, said he was disappointed by the court’s action.

“We continue to believe that government lawyers must be allowed to have confidential discussions with their clients if they are able to provide candid and effective legal advice,” Ruff said in a statement.

Ruff has insisted he is more interested in defending the principle of attorney-client confidentiality than in shielding the disputed notes involving two meetings. They do not contain damaging revelations, he has said.

On July 11, 1995, Mrs. Clinton met with her private attorney, David Kendall, and White House lawyers Jane Sherburne and Mariam Nemetz to discuss her activities immediately after Foster’s suicide. Congressional investigators have suggested that records relevant to the Whitewater case may have been taken from Foster’s office.

Eleven days later, Starr questioned Mrs. Clinton about her activities during this time.

The second set of notes were taken when Mrs. Clinton emerged from a grand jury hearing on Jan. 26, 1996. She had been called before the grand jury to answer questions after the missing billing records were found on a table in the living quarters of the White House.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Investigation Checklist

Some of the questions relating to Hillary Rodham Clinton that are being pursued by independent counsel Kenneth W. Starr:

--Did she conspire to inflate the commissions earned by the Rose Law Firm, where she worked in Little Rock, from an Arkansas real estate deal known as Castle Grande?

--Did she obstruct justice when some of the Rose Law Firm’s billing records disappeared for several years, only to turn up on a table in the White House residence early last year?

--Did she lie when she told federal banking regulators that she had no recollection of working on the Castle Grande deal?

--Did she orchestrate the removal of documents related to the Whitewater affair from the office of deputy White House counsel Vincent Foster after Foster’s death in 1993?

BACKGROUND

The notes the court ruled on involve conversations Hillary Clinton had on July 1, 1995, and Jan. 26, 1996. The 1995 notes relate to her actions after the suicide of Deputy White House Counsel Vincent Foster. The 1996 notes deal with her testimony before a grand jury about her former law firm’s billing procedures.