The President and the Privilege

Independent Counsel Kenneth Starr’s claim that Hillary Rodham Clinton should not be able to use White House lawyers to protect her personal interests and then hide behind the attorney-client privilege has some force. But the case that the White House was planning to take to the Supreme Court as of last Friday isn’t mainly about that.

The broader principle at stake is whether the president himself-any president-or any other government official can ever confide in or seek advice from a government lawyer without fear of compelled disclosure of their communications.

The answer is no, says Starr. If his broad claim prevails, it would mean that any conversations today between the president and his current White House counsel, Charles Ruff, about Whitewater-related issues could be subpoenaed by Starr’s grand jury tomorrow.

Starr won an unprecedented 2-1 decision by the U.S. Court of Appeals for the 8th Circuit that the White House and other government agencies are not protected at all, in the face of a federal grand jury subpoena, by the attorney-client privilege or the related attorney work product doctrine.

The logic of Judge Pasco Bowman’s majority opinion (filed April 9 and unsealed May 2) also casts doubt, as do Starr’s briefs, on whether a governmental attorney-client privilege exists at all, even to ward off subpoenas by private litigants, congressional committees, or (it would apparently follow) criminal defendants who seek prosecutors’ notes of interviews with FBI agents.

If the 8th Circuit decision stands, any future president who is accused (as every recent president has been accused) of possible complicity in criminal conduct will be forced either to abandon any claim to the absolute confidentiality traditionally assured by the attorney-client privilege, or to confide exclusively in private counsel at huge personal expense.

The Clintons’ own retention of private counsel, to whom they owe several million dollars in unpaid fees, was attributable primarily to the Whitewater scandal’s roots in the Clintons’ pre-White House years, and is exceptional among modem presidents. But if Starr’s position prevails, this private-counsel exception may become the rule.

I’m no fan either of the Clintons, who have a history of hiding and fudging awkward facts, or of the current breadth of the attorney-client privilege, which is sometimes used to facilitate cover-ups and evasion of the law rather than compliance with it.

Nonetheless, the 8th Circuit’s holding seems too broad. It should at least be modified by the Supreme Court, even though (as discussed below) the White House might still deserve to lose on narrower grounds.

The case involves a subpoena by Starr’s grand jury for notes taken by White House lawyers at two meetings with Mrs. Clinton and her personal attorney, David Kendall of D.C.’s Williams & Connolly. The first session, on July 11, 1995, focused on Mrs. Clinton’s planned testimony about events following the July 1993 suicide of Deputy White House Counsel Vincent Foster; the second, on Jan. 26, 1996, was a debriefing during breaks in and immediately after Mrs. Clinton’s grand jury testimony about the belated discovery in the White House of her Rose Law Firm billing records.

Starr has made no claim that these consultations were part of a criminal cover-up, or that they would be unprotected by the privilege if just Mrs. Clinton and her private counsel had been present. Rather, Starr (and the 8th Circuit) contends that meetings attended by White House (or other government) lawyers are never privileged, at least as against a federal grand jury subpoena.

While defensible in theory, this view is at odds with the most closely relevant judicial precedents and the views of all recent administrations. It is also the opposite of the position that (I suspect) would have been taken five or 10 years ago both by Judge Bowman, a Reagan-appointed conservative, and by then Judge Starr, if (for example) Independent Counsel Lawrence Walsh had subpoenaed all notes of President Ronald Reagan’s or George Bush’s consultations with their own White House lawyers about the Iran-Contra scandal.


In any event, Starr’s position smacks of changing the rules in the middle of the game to get the Clintons. Indeed, the opinions of both U.S. District Judge Richard Kopf of Nebraska, who dissented from the 8th Circuit decision, and U.S. District Judge Susan Webber Wright of Little Rock, who had initially quashed Starr’s subpoena, exude concern about the unfairness of retroactively applying a new rule of law against the Clintons.

(Kopf and Wright are Bush appointees. Judge Roger Wollman, who joined Bowman’s opinion reversing Wright, is another Reagan appointee.)

An unbroken line of lower court precedents holds that government entities like the White House can invoke the attorney-client privilege in civil cases. White House lawyers also stress that the attorney-client privilege has never been deemed any less applicable in criminal than in civil proceedings.

The White House adds that the Office of the President (like other government entities) enjoys a broad privilege for disclosures to government lawyers by the president and his aides, by analogy to a 1981 Supreme Court ruling, Upjohn Co. v. United States, that the attorney-client privilege of a corporation protects disclosures by its employees to its lawyers for corporate purposes.

Hillary Clinton is not a paid White House official, of course. But she is one of the president’s closest advisers, and every first lady functions as an official, with her own paid staff, for many purposes. Thus, the White House plausibly contends, the attorney-client privilege should protect the first lady’s communications with White House lawyers for….