S. Rept. 104-191 - 104th Congress (1995-1996)
December 19, 1995, As Reported by the Whitewater Committee

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Senate Report 104-191 - REFUSAL OF WILLIAM H. KENNEDY, III, TO PRODUCE NOTES SUBPOENAED BY THE SPECIAL COMMITTEE TO INVESTIGATE WHITEWATER DEVELOPMENT CORPORATION AND RELATED MATTERS




[Senate Report 104-191]
[From the U.S. Government Printing Office]




   104th Congress 1st            SENATE                 Report
         Session
                                                       104-191
_______________________________________________________________________


                                                       Calendar No. 285



 
REFUSAL OF WILLIAM H. KENNEDY, III, TO PRODUCE NOTES SUBPOENAED BY THE 
 SPECIAL COMMITTEE TO INVESTIGATE WHITEWATER DEVELOPMENT CORPORATION 
                          AND RELATED MATTERS

                               __________

                              R E P O R T

                                 of the

                    SPECIAL COMMITTEE TO INVESTIGATE

                   WHITEWATER DEVELOPMENT CORPORATION

                          AND RELATED MATTERS

                          administered by the

                              COMMITTEE ON
                  BANKING, HOUSING, AND URBAN AFFAIRS
                          UNITED STATES SENATE

                              to accompany

                              S. Res. 199

                             together with

                     MINORITY AND ADDITIONAL VIEWS

<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>


               December 19, 1995.--Ordered to be printed
            COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS

  ALFONSE M. D'AMATO, New York, 
             Chairman
PAUL S. SARBANES, Maryland           PHIL GRAMM, Texas
CHRISTOPHER J. DODD, Connecticut     RICHARD C. SHELBY, Alabama
JOHN F. KERRY, Massachusetts         CHRISTOPHER S. BOND, Missouri
RICHARD H. BRYAN, Nevada             CONNIE MACK, Florida
BARBARA BOXER, California            LAUCH FAIRCLOTH, North Carolina
CAROL MOSELEY-BRAUN, Illinois        ROBERT F. BENNETT, Utah
PATTY MURRAY, Washington             ROD GRAMS, Minnesota
                                     PETE V. DOMENICI, New Mexico
 Howard A. Menell, Staff Director
  Robert J. Giuffra, Jr., Chief 
              Counsel
 Philip E. Bechtel, Deputy Staff 
             Director
Steven B. Harris, Democratic Staff 
    Director and Chief Counsel
                                 ------                                

SPECIAL COMMITTEE TO INVESTIGATE THE WHITEWATER DEVELOPMENT CORPORATION 
                          AND RELATED MATTERS

  ALFONSE M. D'AMATO, New York, 
             Chairman
PAUL S. SARBANES, Maryland           RICHARD C. SHELBY, Alabama
CHRISTOPHER J. DODD, Connecticut     CHRISTOPHER S. BOND, Missouri
JOHN F. KERRY, Massachusetts         CONNIE MACK, Florida
RICHARD H. BRYAN, Nevada             LAUCH FAIRCLOTH, North Carolina
BARBARA BOXER, California            ROBERT F. BENNETT, Utah
CAROL MOSELEY-BRAUN, Illinois        ROD GRAMS, Minnesota
PATTY MURRAY, Washington             BILL FRIST, Tennessee
PAUL SIMON, Illinois                 ORRIN B. HATCH, Utah
                                     FRANK H. MURKOWSKI, Alaska
 Howard A. Menell, Staff Director
  Robert J. Giuffra, Jr., Chief 
              Counsel
 Philip E. Bechtel, Deputy Staff 
             Director
Steven B. Harris, Democratic Staff 
    Director and Chief Counsel


                            C O N T E N T S

                              ----------                              
                                                                   Page
Purpose..........................................................     1
Background.......................................................     2
    A. The Committee's Investigation and Subpoena Authority......     2
    B. The November 5, 1993 Whitewater Defense Meeting...........     3
    C. The Relevance of Mr. Kennedy's Notes to the Committee's 
        Investigation............................................     4
Discussion.......................................................     6
    A. The Procedure Followed by the Committee In Issuing the 
        Subpoena to Mr. Kennedy..................................     6
    B. The Extent to Which Mr. Kennedy Has Complied With the 
        Committee's Subpoena.....................................     7
    C. Objections to the Subpoena................................     9
    D. Comparative Effectiveness of a Civil Action or a 
        Certification to the United States Attorney for Criminal 
        Prosecution..............................................    19
Committee's Rollcall Vote........................................    20
Minority Views of the Special Committee to Investigate Whitewater 
  Development Corporation and Related Matters....................    21
    I. Introduction..............................................    21
    II. The November 5, 1993 Lawyers' Meeting....................    22
    III. White House Proposals to Resolve the Conflict...........    23
    IV. Legitimate Privilege Issues Have Been Raised.............    25
    V. Production of the Kennedy Notes Could Constitute a General 
        Waiver of the Attorney-Client Privilege..................    27
    VI. Rather Than Sending This Matter to the Courts, the 
        Committee Should Make Further Efforts to Negotiate a 
        Resolution of This Dispute Based on a Careful Balancing 
        of the Interests Involved................................    30
    VII. Conclusion..............................................    33
    Exhibit A....................................................    34
    Exhibit B....................................................    36
    Exhibit C....................................................    58
Additional Views of Senator Kerry................................   104
                                                       Calendar No. 285
104th Congress                                                   Report
                                 SENATE

 1st Session                                                    104-191
_______________________________________________________________________



REFUSAL OF WILLIAM H. KENNEDY, III, TO PRODUCE NOTES SUBPOENAED BY THE 
SPECIAL COMMITTEE TO INVESTIGATE WHITEWATER DEVELOPMENT CORPORATION AND 
                            RELATED MATTERS
                                _______


               December 19, 1995.--Ordered to be printed

_______________________________________________________________________


   Mr. D'Amato, from the Special Committee to Investigate Whitewater 
 Development Corporation and Related Matters, submitting the following

                              R E P O R T

                       [To accompany S. Res. 199]

                             together with

                     MINORITY AND ADDITIONAL VIEWS

    The Special Committee to Investigate Whitewater Development 
Corporation and Related Matters reports an original resolution 
to direct the Senate Legal Counsel to bring a civil action to 
enforce the Committee's subpoena to William H. Kennedy, III, 
and recommends that the resolution be agreed to.

                                Purpose

    On December 8, 1995, the Committee issued a subpoena duces 
tecum to William H. Kennedy, III, former Associate Counsel to 
the President and now of counsel to the Rose Law Firm of Little 
Rock, Arkansas, to produce notes that he took at a meeting held 
on November 5, 1993, at the law firm of Williams & Connolly. 
The purpose of this meeting, which was attended by both 
personal counsel for the President and Mrs. Clinton and by 
White House officials, was to discuss Whitewater Development 
Corporation (``Whitewater'') and related matters. The meeting 
occurred at a critical time with regard to the ``Washington 
phase'' of the Whitewater matter, and Mr. Kennedy's notes of 
this meeting may relate to at least six matters of inquiry 
specified in Senate Resolution 120, including allegations that 
the White House improperly handled confidential government 
information about Whitewater. Nevertheless, Mr. Kennedy, at the 
instruction of counsel for both the President and Mrs. Clinton 
and the White House, has refused to comply with the Committee's 
subpoena for his notes.
    This report recommends that the Senate adopt a resolution 
authorizing the Senate Legal Counsel to bring a civil action to 
compel Mr. Kennedy to comply with the Committee's subpoena. In 
accordance with section 705(c) of the Ethics in Government Act 
of 1978, 2 U.S.C Sec. 288d(c) (1994), this report discusses the 
following:
          (A) the procedure followed by the Committee in 
        issuing its subpoena;
          (B) the extent to which Mr. Kennedy has complied with 
        the subpoena;
          (C) the objections or privileges to the subpoena 
        raised by counsel for the President and Mrs. Clinton, 
        the White House, and Mr. Kennedy; and
          (D) the comparative effectiveness of (i) bringing a 
        civil action, (ii) certifying a criminal action for 
        contempt of Congress, and (iii) initiating a contempt 
        proceeding before the Senate.
    To place the Committee's request for civil enforcement of 
its subpoena in proper context, this report first provides the 
background of the November 5, 1993 meeting and its relevance to 
the Committee's investigation.

                               Background

        A. The Committee's Investigation and Subpoena Authority

    Acting pursuant to Senate Resolution 120, the Special 
Committee to Investigate Whitewater Development Corporation and 
Related Matters (``the Committee'') is currently investigating 
and holding public hearings into a number of matters, 
including:
          (1) whether the White House improperly handled 
        confidential Resolution Trust Corporation (``RTC'') 
        information about Madison Guaranty Savings & Loan 
        Association (``Madison'') and Whitewater;
          (2) whether the Department of Justice improperly 
        handled RTC criminal referrals relating to Madison and 
        Whitewater;
          (3) the operations of Madison;
          (4) the activities, investments and tax liability of 
        Whitewater, its officers, directors, and shareholders;
          (5) the handling by the RTC and other federal 
        regulators of civil or administrative actions against 
        any parties regarding Madison; and
          (6) the sources of funding and lending practices of 
        Capital Management Services, and its supervision by the 
        Small Business Administration (``SBA''), including any 
        alleged diversion of funds to Whitewater.
    Section 5(b)(1) of Senate Resolution 120 authorizes the 
Committee to issue subpoenas for the production of documents. 
Under section 5(b)(10) of the Resolution, the Committee is 
authorized to report to the Senate recommendations for civil 
enforcement with respect to the willful failure or refusal of 
any person to produce any document or other material in 
compliance with any subpoena.

           B. The November 5, 1993 Whitewater Defense Meeting

    On November 5, 1993, a meeting was held at the law offices 
of Williams & Connolly, which had recently been retained by the 
President and Mrs. Clinton to act as their personal counsel for 
Whitewater-related matters. Seven persons attended the meeting; 
three lawyers in private practice and four White House 
officials:
          David Kendall, a partner at the Washington, D.C. law 
        firm of Williams & Connolly and the most recently 
        retained private counsel to the President and Mrs. 
        Clinton on the Whitewater matter.
          Stephen Engstrom, a partner at the Little Rock law 
        firm of Wilson, Engstrom, Corum, Dudley & Coulter, who 
        also had been retained by the President and Mrs. 
        Clinton to provide personal legal advice on the 
        Whitewater matter.
          James Lyons, a lawyer in private practice in 
        Colorado, who had provided legal advice to then-
        Governor and Mrs. Clinton on the Whitewater matter 
        during the 1992 presidential campaign.1
    \1\ The President and Mrs. Clinton have agreed not to assert the 
attorney-client privilege with regard to any communications that 
occurred during the 1992 presidential campaign, including 
communications they may have had with Lyons.
---------------------------------------------------------------------------
          Then-Counsel to the President Bernard Nussbaum.
          Then-Associate Counsel to the President William 
        Kennedy, who while a partner at the Rose Law Firm 
        provided some legal services to the Clintons in 1990-92 
        in connection with their investment in Whitewater.
          Then-Associate Counsel to the President Neil 
        Eggleston.
          Then-Director of White House Personnel Bruce Lindsey. 
        The White House claims that Mr. Lindsey, a lawyer, 
        provided legal services to the President with regard to 
        the Whitewater matter while serving as White House 
        Personnel Director. (Williams & Connolly, 12/12/95 Mem. 
        p. 15). As set forth more fully below, however, Mr. 
        Lindsey has testified that he never provided advice to 
        the President regarding Whitewater matters. (Lindsey, 
        7/21/94 Dep. pp. 39-40).
    Kendall organized this meeting, which lasted for more than 
two hours, during which time Mr. Kennedy took extensive notes.
    Mr. Lindsey testified that ``[t]he purpose of the meeting 
was Whitewater Development Corporation.'' (Lindsey, 11/28/95 
Hrg. p. 204). When asked whether the gathering was a legal 
defense meeting, Mr. Lindsey testified that ``that would 
accurately characterize the meeting.'' (Lindsey, 11/28/95 Hrg. 
p. 205). Mr. Kennedy testified that he attended this meeting 
``to impart information to the Clinton's personal lawyers.'' 
(Kennedy, 12/5/95 Hrg. p. 46). He also said that he ``was not 
at the meeting representing anyone.'' (Kennedy, 12/5/95 Hrg. p. 
44).
    Both Messrs. Lindsey and Kennedy refused to discuss the 
substance of the meeting during their testimony before the 
Committee. (Lindsey, 11/28/95 Hrg. pp. 179-180, 201-211; 
Kennedy, 12/5/95 Hrg. pp. 42-47, 59-61). For example, Mr. 
Lindsey refused to answer the question ``[w]as there a 
discussion in that meeting about trying to get information from 
either the SBA or RTC about what these investigations were 
doing?'' (Lindsey, 11/28/95 Hrg. p. 210). Mr. Lindsey initially 
refused even to confirm who attended the meeting. (Lindsey, 11/
28/95 Hrg. pp. 179, 202). Similarly, Mr. Kennedy refused to say 
whether the information that he imparted at the meeting 
included information he had obtained in August 1993 from Randy 
Coleman, the lawyer for former Arkansas Judge David Hale. 
(Kennedy, 12/5/95 Hrg. p.47). Mr. Hale has alleged that then-
Governor Clinton pressured him to make an improper SBA loan to 
the Clintons' Whitewater partner, Susan McDougal.
    White House spokesman Mark Fabiani has stated that the 
purpose of the meeting was to ``pass the torch between the 
White House lawyers who had been handling Whitewater to the 
newly hired attorney, David Kendall.'' (New York Post, 11/29/95 
p. 16).
    The President and Mrs. Clinton's personal counsel, Mr. 
Kendall, has offered a more detailed explanation of the purpose 
of the meeting. According to Mr. Kendall, the meeting was held

          to provide new private counsel with a briefing about 
        ``Whitewater'' issues from counsel for the Clintons who 
        had been involved with those matters, to brief the 
        White House Counsel's office and new personal counsel 
        on the knowledge of James M. Lyons, personal attorney 
        for the Clintons who had conducted an investigation of 
        Whitewater Development Corporation in the 1992 
        Presidential Campaign, to analyze the pending issues, 
        and, finally, to discuss a division of labor between 
        personal and White House counsel for handling future 
        Whitewater issues. (Williams & Connolly, 12/12/95 Mem. 
        p. 13).

      c. the relevance of mr. kennedy's notes to the committee's 
                             investigation

    Mr. Kennedy's notes may be relevant to at least six areas 
of inquiry outlined above that the Committee is now 
investigating pursuant to Senate Resolution 120.
    This November 5, 1993 meeting occurred at a critical time 
in the Whitewater matter.2 On September 29, 1993, Treasury 
Department General Counsel Jean Hanson had warned White House 
Counsel Bernard Nussbaum about the existence of several 
confidential RTC criminal referrals involving Madison, 
Whitewater, and the Clintons. (S. Rep. 103-433, ``Madison 
Guaranty S&L and the Whitewater Development Corporation, 
Washington, D.C. Phase, Report of the Committee on Banking, 
Housing, and Urban Affairs, United States Senate, on the 
Communications Between Officials of the White House and the 
U.S. Department of the Treasury or the Resolution Trust 
Corporation,'' 103rd Cong., 2d Sess., January 3, 1995 pp. 9-13) 
(hereinafter ``S. Rep. 103-433''). Ms. Hanson told Mr. Nussbaum 
that the President and Mrs. Clinton were named as potential 
witnesses to suspected criminal activities in the referrals. 
(S. Rep. 103-433 p. 11). Ms. Hanson also told Mr. Nussbaum that 
the referrals referenced possible improper campaign 
contributions from Madison to a Clinton gubernatorial campaign. 
(S. Rep. 103-433 p. 11). Mr. Nussbaum has acknowledged that Ms. 
Hanson provided him with non-public information about these 
referrals. (S. Rep. 103-433 p. 12).
    \2\ This is the only meeting of private counsel for the Clintons 
and White House officials of which the Committee is aware. There may be 
other similar meetings in which the Committee has an investigatory 
interest.
---------------------------------------------------------------------------
    After his meeting with Ms. Hanson, Mr. Nussbaum instructed 
Clifford Sloan, an attorney in the White House Counsel's 
office, to convey Ms. Hanson's information to Mr. Lindsey, who 
was then the Director of Presidential Personnel; Mr. Sloan did 
so. (S. Rep. 103-433 pp. 12-13). On or about October 4, 1993, 
Mr. Lindsey informed President Clinton of the existence of the 
criminal referrals. (S. Rep. 103-433 p. 18). On October 6, 
1993, President Clinton met at the White House with Jim Guy 
Tucker, the Governor of Arkansas, who was mentioned in the RTC 
criminal referrals. (S. Rep. 103-433 p. 18).3 On October 
14, 1993, a meeting was held in Mr. Nussbaum's office with 
senior Treasury and White House officials, including Mr. 
Lindsey and Mr. Eggleston, to discuss the confidential RTC 
criminal referrals. (S. Rep. 103-403 pp. 26-34).
    \3\ On August 17, 1995, the Independent Counsel indicted Mr. Tucker 
for certain misconduct identified in these RTC criminal referrals.
---------------------------------------------------------------------------
    On August 17, 1993, Mr. Kennedy was contacted by Mr. 
Coleman, who told him that Mr. Hale was under investigation by 
the Federal Bureau of Investigations and expected to be 
indicted soon in connection with Capital Management Services 
and the SBA. (Coleman, 11/9/95 Dep. pp. 63-68; Coleman, 12/1/95 
Hrg. pp. 11-12). A few days later, Mr. Coleman and Mr. Kennedy 
had a second conversation in which Mr. Coleman commented that 
if Heidi Fleiss ``was madam to the stars, David Hale was the 
lender to the political elite in Arkansas.'' (Coleman, 12/1/95 
Hrg. p. 16; see also Coleman, 11/9/95 Dep. p. 70; Kennedy, 11/
1/95 Dep. p. 12; Kennedy, 12/5/95 Hrg. p. 9). Coleman told 
Kennedy that Hale operated a Small Business Investment Company 
and had made a number of improper loans to politicians. 
(Kennedy, 11/1/95 Dep. pp. 22-23; Kennedy, 12/5/95 Hrg. pp.16-
20). Coleman also said that Hale alleged that President Clinton 
was involved in these loans. (Kennedy, 11/1/95 Dep. pp. 22-23; 
Kennedy, 12/5/95 Hrg. pp.16-20). Mr. Kennedy advised Mr. 
Nussbaum of Hale's allegations against the President. (Kennedy, 
11/1/95 Dep. pp. 12-14; Kennedy, 12/5/95 Hrg. pp. 13-15).
    Thus, as of November 5, 1993, White House officials, 
including Messrs. Nussbaum, Eggleston and Lindsey, had received 
confidential information relating to ten RTC criminal referrals 
concerning Madison and Whitewater. The White House Counsel's 
office also was aware of Mr. Hale's allegations against the 
President. As of this time, the RTC considered the information 
about the referrals confidential and, in fact, considers the 
information confidential to the present day. Moreover, as of 
November 5, the RTC had not officially confirmed the accuracy 
of any press accounts about the referrals. (Black, 11/7/95 Hrg. 
pp. 168, 190).
    Following the November 5 meeting, White House officials, 
including persons who attended this meeting, sought to obtain 
further confidential information about Whitewater. For example, 
on November 16, 1993, Mr. Eggleston contacted John Spotila, the 
General Counsel of the SBA, to obtain confidential information 
about criminal referrals involving Mr. Hale. (Eggleston, 11/4/
95 Dep. pp. 61-68; Spotila, 11/6/95 Dep. pp. 52-65). There were 
substantial additional contacts between Treasury and White 
House officials concerning RTC matters in the early part of 
1994, including a February 2, 1994, meeting at the White House 
attended by, among others, Deputy Treasury Secretary Roger 
Altman, Ms. Hanson, Mr. Nussbaum, and Mr. Eggleston. (S. Rep. 
103-433 pp. 64-78).
    The Senate has charged this Committee with determining 
whether White House officials improperly handled confidential 
RTC information relating to Madison and Whitewater. It would 
have been improper for White House officials to communicate 
confidential RTC or other law enforcement information to the 
Clintons' private lawyers to assist them in defending the 
Clintons against the RTC or any other potential civil or 
criminal enforcement actions. The investigations of Madison 
raised the possibility that the President or Mrs. Clinton 
personally could be held financially or otherwise liable in 
connection with the activities of the Rose Law Firm or 
Whitewater.
    During the Banking Committee's hearings in the summer of 
1994, the White House claimed that White House officials 
obtained this confidential RTC information solely to assist 
them in the official function of responding to press inquiries. 
Mr. Lindsey told the Committee, however, that the November 5 
meeting ``was not for the purpose of press inquiries.'' 
(Lindsey, 11/28/95 Hrg. p. 204). The Committee must determine 
whether there was a discussion of confidential RTC information 
during the November 5 meeting. After confidential law 
enforcement information was improperly obtained by the White 
House, this meeting appears to be the first instance when White 
House lawyers met with the Clintons' private legal counsel to 
discuss Whitewater. Mr. Kennedy's contemporaneous notes of this 
meeting are therefore vital to the Committee's inquiry.

                               Discussion

 A. The Procedure Followed by the Committee In Issuing the Subpoena to 
                              Mr. Kennedy

    On August 25, 1995, the Committee served a document request 
to the White House requesting, among other things, any 
documents in the possession, custody or control of the White 
House relating to Whitewater.
    On October 30, 1995, the Committee issued a subpoena duces 
tecum to the White House directing the production of ``certain 
documents relating to Whitewater Development Corporation.'' In 
response, on November 2, 1995, the White House refused to 
produce a number of documents responsive to the subpoena, 
including Mr. Kennedy's notes of the November 5, 1993 
meeting.4
    \4\ The original notes are now in the possession of Mr. Kennedy's 
counsel. Both the White House and the President and Mrs. Clinton's 
personal counsel, Mr. Kendall, also possess copies of Mr. Kennedy's 
notes. (Kennedy, 12/5/95 Hrg. p. 81). It is not clear to the Committee 
when Mr. Kennedy provided copies of his notes to the White House or Mr. 
Kendall.
---------------------------------------------------------------------------
    On December 5, 1995, Mr. Kennedy appeared before the 
Committee. He was questioned about the November 5 meeting, but, 
at the direction of counsel for both the President and Mrs. 
Clinton and the White House, refused to answer any questions 
about the substance of the meeting. (Kennedy, 12/5/95 Hrg. pp. 
42-47, 59-61). When asked by Senator Faircloth, ``[w]hat was 
discussed at the meeting?,'' Mr. Kennedy replied that ``I have 
been instructed that the meeting is covered by the attorney-
client privilege and I've been instructed to abide by that 
privilege.'' (Kennedy, 12/5/95 Hrg. p. 42).
    On December 8, 1995, the Committee issued a subpoena duces 
tecum to Mr. Kennedy directing him to ``[p]roduce any and all 
documents, including but not limited to, notes, transcripts, 
memoranda, or recordings, reflecting, referring or relating to 
a November 5, 1993 meeting attended by William Kennedy at the 
offices of Williams & Connolly.'' The Committee advised Mr. 
Kennedy that, if he had objections to subpoena, he was invited 
to submit a legal memorandum to the Committee by December 12, 
1995.5
    \5\ Counsel for Mr. Kennedy subsequently informed the Committee by 
letter that he was ``somewhat uncertain about the status of the 
subpoena'' because it had been delivered to him rather than Mr. 
Kennedy. The Committee believes that the December 8, 1995 subpoena was 
validly served on counsel for Mr. Kennedy, who had represented Mr. 
Kennedy in connection with the Committee's present investigation and 
had regularly communicated with the Committee on Mr. Kennedy's behalf. 
In any event, on December 15, 1995, the Committee voted to issue 
another subpoena, which was personally served on Mr. Kennedy in Little 
Rock that same day.
---------------------------------------------------------------------------

 B. The Extent to Which Mr. Kennedy Has Complied With the Committee's 
                                Subpoena

    Mr. Kennedy has refused to comply with the Committee's 
subpoena. On December 12, 1995, the Committee received separate 
submissions from counsel for Mr. Kennedy, the President and 
Mrs. Clinton, and the White House raising objections to the 
Committee's subpoena. Mr. Kennedy's counsel advised the 
Committee that Mr. Kennedy had been instructed by the President 
and Mrs. Clinton's personal counsel and by the White House 
Counsel not to produce to the Committee the subpoenaed notes of 
the November 5 meeting.
    On December 14, 1995, the Chairman of the Committee, 
pursuant to Senate Resolution 120, convened a meeting of the 
Committee to rule on the objections raised by Mr. Kennedy's 
counsel, the President and Mrs. Clinton's personal counsel and 
the White House counsel. After careful consideration of the 
arguments, and after receiving the advice of the Committee's 
counsel, the Chairman overruled the objections to the subpoena. 
The Committee then voted to order and direct Mr. Kennedy to 
produce the subpoenaed documents by 9:00 a.m. on December 15, 
1995. After Mr. Kennedy failed to comply with this order, the 
Committee voted on December 15, 1995, to report to the Senate 
the resolution that accompanies this report.6
    \6\ On December 18, 1995, the Committee received a letter 
indicating that Mr. Kennedy had declined to comply with the Committee's 
December 15 subpoena. That same day, the Chairman of the Committee 
overruled the objections to the subpoena and ordered and directed Mr. 
Kennedy to produce the subpoenaed documents by 3:00 p.m. the following 
day. Mr. Kennedy did not comply with this order.
---------------------------------------------------------------------------
    Counsel to the President and Mrs. Clinton and the White 
House made two proposals to the Committee regarding disclosure 
of the Kennedy notes. Under the first proposal, dated December 
7, 1995, the Committee would not receive the notes. Moreover, 
the Committee could examine those who attended the November 5 
meeting only about (1) the purpose of the meeting, (2) what 
they knew before the meeting, and (3) what actions they took 
after the meeting. The participants could not be questioned 
about what transpired or was said during the meeting, or 
whether they took any action as a consequence of the meeting. 
(Williams & Connolly, 12/12/95 Mem. pp.38-40).
    The Committee rejected this proposal as unacceptable. 
Because no basis existed for asserting any privilege with 
respect to the three lines of questioning listed above, this 
proposal was not a compromise. Moreover, the Committee would 
not be allowed to ascertain whether the White House officials 
who attended the meeting improperly shared confidential RTC 
information with private counsel for the President and Mrs. 
Clinton during the November 5 meeting. Although the Committee 
would be free to ask those who attended the meeting what 
actions they took afterward, it would not be able to determine 
if the actions were taken as a result of what was said during 
the meeting, except through a laborious and uncertain process 
of excluding all other possibilities. Finally, the Committee 
seeks the Kennedy notes to refresh the memories of those who 
attended the meeting. All too often the Committee has been 
confronted with witnesses with extremely poor recollections of 
important events.
    On December 14, 1995, counsel for the White House proposed 
that the Kennedy notes be provided to the Committee, subject to 
the following conditions:

          (1) The Committee would agree that the November 5, 
        1993 meeting was a privileged meeting;
          (2) The Committee would agree that it would not 
        argue, in any forum, as a basis for obtaining 
        information about other counsel meetings or for any 
        other reason, that any privileges or legal positions 
        had been waived by permitting inquiry into the November 
        5, 1993 meeting;
          (3) The Committee would limit its testimonial inquiry 
        about this meeting to the White House officials who 
        attended it;
          (4) The Committee would secure the concurrence to 
        these terms of other investigative bodies, including 
        the Independent Counsel, other congressional committees 
        with investigatory or oversight interest in the 
        Madison/Whitewater matter, the Resolution Trust 
        Corporation (and its successor), and the Federal 
        Deposit Insurance Corporation; and
          (5) Pursuant to Section 2(c) of S. Res. 120, the 
        Committee would adopt procedures to ensure that any 
        interest the Committee may develop in the other matters 
        covered by the attorney-client privilege for the 
        President will be pursued, if at all, on a bipartisan 
        basis.

    After reviewing this proposal, the Committee announced that 
it would not object to conditions two and three and indeed had 
offered to agree to those terms previously. But the Committee 
refused to enter into an agreement requiring it to engage in 
the time-consuming process of bargaining with other 
investigatory agencies, including the Independent Counsel, over 
the terms of a non-waiver agreement. Although the Committee 
would have agreed to enter into such a non-waiver agreement on 
its own behalf, the Committee has no intention of interposing 
itself between the White House and other investigators. Nor 
does it have a right to do so. Indeed, grand jury secrecy 
restrictions forbid the Committee's participation in 
discussions over subpoenas to the White House. Moreover, the 
Committee was not, for the reasons set forth below, willing to 
agree that the November 5 meeting was a privileged meeting.
    In sum, Mr. Kennedy has not complied with the subpoena 
issued by the Committee. He has not turned over his notes of 
the November 5 meeting, and neither proposal put forward by the 
White House or the Clintons' personal counsel is acceptable to 
the Committee.

                     C. Objections to the Subpoena

    Counsel to the President and Mrs. Clinton and the White 
House have interposed three objections to the Committee's 
subpoena for Mr. Kennedy's notes: (i) the attorney-client 
privilege; (ii) the common interest doctrine, which has been 
raised in conjunction with the attorney-client privilege; and 
(iii) the work product doctrine.
    Significantly, the President has not asserted any claim of 
executive privilege with regard to Mr. Kennedy's notes. See, 
e.g., United States v. Nixon, 418 U.S. 683 (1974). Although the 
submission by the White House Counsel's office discusses this 
privilege, it expressly states that ``the White House has 
refrained from asserting executive privilege before the 
Committee.'' (White House, 12/12/95 Mem. pp. 17-18). For that 
reason, the Committee neither considered nor ruled upon an 
executive privilege claim.

1. Production of documents pursuant to congressional subpoena, by 
        itself, does not result in a waiver of the attorney-client 
        privilege

    Counsel for the President and Mrs. Clinton and the White 
House have expressed the concern that disclosure of the Kennedy 
notes would result in a broad waiver of the attorney-client 
privilege. (Williams & Connolly, 12/12/95 Mem. pp. 35-36; White 
House, 12/12/95 Mem p.21). This concern is wholly unfounded.
    Because the attorney-client privilege belongs to the 
client, only the client may waive the privilege. Waiver is 
``described as intentional relinquishment of a known right.'' 1 
McCormick on Evidence 341 n.4 (John W. Strong ed., 4th ed. 
(1992) (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In 
the context of the attorney-client privilege, ``voluntary 
disclosure, regardless of knowledge of the existence of the 
privilege, deprives a subsequent claim of privilege . . . of 
any significance.'' Id.
    If a party produces privileged material in response to a 
subpoena, without interposing any objections, such production 
is generally deemed voluntary and a waiver of the privilege. 
See, e.g., Westinghouse Elec. Corp. v. Republic of the 
Philippines, 951 F.2d 1414, 1427 (3d Cir. 1991); Permian Corp. 
v. United States, 665 F.2d 1214, 1221-22 (D.C. Cir. 1981). In 
contrast, courts have recognized that disclosure of documents 
in response to a court order is compelled, not voluntary, and, 
therefore, that such disclosure does not function as a waiver 
against future assertions of privilege. In Westinghouse 
Electric Corp., 951 F.2d at 1427 n.14, for example, the Third 
Circuit stated that, if the party that first invoked, but then 
withdrew its assertion of, the privilege, instead ``continued 
to object to the subpoena and produced the documents only after 
being ordered to do so, we would not consider its disclosure of 
those documents to be voluntary.'' 7
    \7\ This difference between initial compliance in response to a 
subpoena and compliance under a subsequent order is recognized in the 
American Bar Association's Model Code of Professional Responsibility, 
which provides: ``A lawyer may reveal: . . . [c]onfidences or secrets 
when . . . required by law or court order.'' Model Code of Professional 
Responsibility DR 4-101(C)(2) (1980).
---------------------------------------------------------------------------
    A court is likely to treat disclosure under compulsion of a 
congressional order as involuntary and, therefore, not 
effecting a waiver. First, a court order and a congressional 
order stand on a similar jurisprudential footing: each is an 
order of a competent tribunal with plenary jurisdiction to rule 
on the privilege assertion. See S. Res. 120, 104th Cong. 
Sec. 5(b)(1) (1995) (``If a return on a subpoena . . . for the 
production of documentary . . . evidence is . . . accompanied 
by an objection, the chairman (in consultation with the ranking 
member) may convene a meeting or hearing . . . to rule on the 
objection.''). The District of Columbia Circuit has stated that 
an attorney-client privilege assertion is waived by disclosure 
in all instances ``[s]hort of court-compelled disclosure . . . 
or other equally extraordinary circumstances.'' In re Sealed 
Case, 877 F.2d 976, 980 (D.C. Cir. 1989). Compliance with a 
congressional order certainly is surely an ``equally 
extraordinary circumstance[ ]'' of the type contemplated by the 
court.
    Second, in these circumstances, an order from a 
congressional committee is no less compulsory than an order 
from a court. The Committee formally overruled the objections 
based on attorney-client privilege and work product doctrine 
and ``ordered and directed'' Mr. Kennedy to comply with the 
subpoena. The terms of the Committee's order on its face render 
compliance compulsory, not voluntary. Indeed, it is difficult 
to imagine how compliance with the Committee's order could be 
understood to be voluntary in any meaningful sense of the term.
    Third, the involuntariness of compliance with the 
Committee's order is clear from consideration of the potential 
consequences of defiance of the order. Mr. Kennedy's 
disobedience of the Committee's order subjected him to a 
serious risk of punishment. In addition to (or instead of) 
civil enforcement, the Senate could certify to the United 
States Attorney, or, in this case, most likely the Independent 
Counsel, Mr. Kennedy's contumacy, for presentation to a grand 
jury for criminal indictment for contempt of Congress under 2 
U.S.C. Sec. Sec. 192, 194. Alternatively, Mr. Kennedy could be 
tried for contempt before the bar of the Senate, as was the 
Senate's early practice for disobedient witnesses.
    Finally, the Senate's power to compel production of 
documents to obtain information relevant to Congress's 
legislative and oversight responsibilities is inherent in 
Congress's constitutional power to legislate. Disclosure to the 
Congress in the course of investigations of the Executive 
Branch is not necessarily a waiver. Two circuits have expressly 
recognized in the context of public requests for information 
under the Freedom of Information Act (``FOIA'') that, in light 
of Congress's superior rights to information, disclosure to 
Congress of arguably privileged materials does not result in a 
waiver of any privilege under FOIA. Florida House of 
Representatives v. U.S. Dep't of Commerce, 961 F.2d 941 (11th 
Cir.), cert. dismissed, 113 S. Ct. 446 (1992); Murphy v. Dep't 
of the Army, 613 F.2d 1151 (D.C. Cir. 1979). In Florida House 
of Representatives, for example, the Eleventh Circuit concluded 
that because the FOIA exemption for ``deliberative process'' 
may not be exercised against Congress, efforts to resist such a 
subpoena on grounds of privilege would be fruitless. Because 
the subpoena could not be successfully resisted, the court 
reasoned, providing the material to Congress would not trigger 
a waiver of the privilege. 961 F.2d at 946.
    In sum, the concern expressed by counsel to the President 
and Mrs. Clinton and the White House that compliance with the 
Committee's subpoena will result in a waiver of the attorney-
client privilege of the President and Mrs. Clinton has no 
foundation in the law. We turn now to consideration of the 
objections raised against the Committee's subpoena.

2. The attorney-client privilege does not shield the Kennedy notes from 
        disclosure to this committee

    The primary objection to the Committee's subpoena 
interposed by the President and Mrs. Clinton is the attorney-
client privilege. In conjunction with that objection, the 
Clintons have also raised the so-called ``common interest'' or 
``joint defense'' doctrine. The Committee is firmly of the view 
that the attorney-client privilege cannot shield Mr. Kennedy's 
notes from disclosure to the Committee.
    It is within the sound discretion of Congress to decide 
whether to accept a claim of attorney-client privilege. See 
Morton Rosenberg, ``Investigative Oversight: An Introduction to 
the Law, Practice, and Procedure of Congressional Inquiry,'' 
CRS Report No. 95-464A, at 43 (April 7, 1995). Unlike some 
other testimonial privileges, such as the privilege against 
compulsory self-incrimination, see U.S. Const. Amend. V, the 
attorney-client privilege itself is not rooted in the 
Constitution. See Maness v. Meyers, 419 U.S. 449, 466 n.15 
(1975); Cluchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir. 
1985), cert. denied, 475 U.S. 1088 (1986). Rather, the 
attorney-client privilege is a product of the common law and is 
observed in federal courts by virtue of the Federal Rules of 
Evidence. See Fed. R. Evid. 501.
    In deciding questions of privilege, committees of Congress 
have consistently recognized their plenary authority to rule on 
any claim of non-constitutional privilege. See Proceedings 
Against Ralph Bernstein and Joseph Bernstein, H. Rep. No. 99-
462, 99th Cong., 2d Sess. 13, 14 (1986); Hearings, 
International Uranium Cartel, Before the Subcommittee on 
Oversight and Investigations, House Committee on Interstate and 
Foreign Commerce, 95th Cong., 1st Sess. 60, 123 (1977). The 
Constitution affirmatively grants each house of Congress the 
authority to establish its own rules of procedure. See U.S. 
Const., Art. I, Sec. 5, cl. 2. The conclusion that recognition 
of privileges is a matter of congressional discretion is 
consistent, moreover, with both traditional English 
parliamentary procedure and the Congress' historical practice. 
See Rosenberg, supra, at 44-49.
    Although this Committee has honored valid claims of 
attorney-client privilege in the course of its investigation, 
it need not recognize such claims of privilege in the same 
manner as would a court of law. A congressional committee must 
make its own determination regarding the propriety of 
recognizing the privilege in the course of a congressional 
investigation taking into account the Senate's 
constitutionally-based responsibility to oversee the activities 
of the Executive Branch.8 In this instance, it is the 
Committee's considered judgment that the President and Mrs. 
Clintons' claim of privilege is not well taken.
    \8\ Even in a judicial setting, ``[t]he party asserting the 
attorney-client privilege has the burden of establishing the 
relationship and the privileged nature of the communication.'' Ralls v. 
United States, 52 F.3d 223, 225 (9th Cir. 1995). Moreover, ``[b]ecause 
the attorney-client privilege obstructs the truth-finding process, it 
is construed narrowly.'' Westinghouse Elec. Corp., 951 F.2d at 1423.
---------------------------------------------------------------------------
            a. The President and Mrs. Clinton did not attend the 
                    November 5, 1993, meeting or communicate with any 
                    of the participants during the meeting
    The attorney-client privilege applies to confidential 
communications of the client to his or her attorney in 
connection with the lawyer's provision of legal advice. See, 
e.g., 8 Wigmore, Evidence, Sec. 2292, at 554 (McNaughton rev. 
ed. 1961); United States v. United Shoe Machinery Corp., 89 F. 
Supp. 357, 358-359 (D. Mass. 1950) (Wyzanski, J.). ``The 
privilege does not extend, however, beyond the substance of the 
client's confidential communication to the attorney.'' In re 
Fischel, 557 F.2d 209, 211 (9th Cir. 1977). The only 
communications protected by the privilege, then, are those that 
will disclose what the client said in confidence to the lawyer.
    Moreover, not everything that a lawyer learns in confidence 
is protected by the attorney-client privilege. For example, 
what a lawyer learns from someone other than the lawyer's 
client, even in the course of representation of that client, is 
not protected by the privilege. Thus, ``the protective cloak of 
the privilege does not extend to information which an attorney 
secures from a witness while acting for his client in 
anticipation of litigation.'' Hickman v. Taylor, 329 U.S. 495, 
508 (1947).
    In this case, the clients--the President and Mrs. Clinton--
were not present at the November 5 meeting. Moreover, Mr. 
Kennedy testified that none of the participants communicated 
with the President during the meeting, whether by phone, 
facsimile, or otherwise, and that no writing was prepared for 
or received by the President while the meeting took place. 
(Kennedy, 12/5/95 Hrg. pp. 63-64). The Committee has received 
no indication that anyone communicated with Mrs. Clinton during 
the meeting.
    There can be no privilege protecting Mr. Kennedy's notes 
from disclosure to this Committee unless the notes reflect the 
substance of a confidential communication of the President or 
Mrs. Clinton. Cf. American Standard, Inc. v. Pfizer Inc., 828 
F.2d 734, 745 (Fed. Cir. 1988) (attorney's written legal 
opinion held not privileged because ``it did not reveal, 
directly or indirectly, the substance of any confidential 
communication''). Given that President Clinton did not attend 
the November 5 meeting and did not communicate with anyone 
during the course of the meeting, it is unlikely that the 
Kennedy notes reflect much, if anything, in the way of 
President Clinton's confidential communications. Moreover, to 
the extent that the notes reveal information about Whitewater 
obtained from persons other than the President or Mrs. Clinton, 
they cannot be privileged.
    In sum, based upon the facts before the Committee about the 
November 5 meeting, the President and Mrs. Clinton have not 
satisfied the Committee that the Kennedy notes are protected 
from disclosure to the Committee by the attorney-client 
privilege.
            b. The presence of government lawyers at the November 5 
                    meeting bars any claim of attorney-client privilege 
                    for Mr. Kennedy's notes
    Because the November 5 meeting was attended by four 
government attorneys--Messrs. Nussbaum, Kennedy and Eggleston 
of the White House Counsel's office, and by Mr. Lindsey, then 
the White House Personnel Director--the attorney-client 
privilege does not protect communications with those attorneys.

  i. Government attorneys may not represent the President on private 
                             legal matters

    The White House lawyers present at the November 5 meeting 
could not represent the President and Mrs. Clinton in 
connection with their private legal matters. When he was 
appointed Special Counsel to the President by President Clinton 
Lloyd Cutler explained the proper sphere of the White House 
Counsel's representation of the President: ``When it comes to a 
President's private affairs, particularly private affairs that 
occurred before he took office, those should be handled by his 
own personal private counsel, and in my view not by the White 
House Counsel.'' (The White House, Remarks by the President in 
Appointment of Lloyd Cutler for Special Counsel to the 
President, March 8, 1994).
    The provision of legal services by government lawyers 
relating to the President's personal matters would be contrary 
to the ``Standards of Ethical Conduct'' promulgated by the 
Office of Government Ethics (``OGE''). The Standards of Ethical 
Conduct, which were issued pursuant to Executive Order 12674 
and apply to all Executive Branch employees, establish that it 
is a misuse of government position to make ``[u]se of public 
office for private gain.'' 5 C.F.R. Sec. 2635.701(a). More 
specifically, a government employee ``shall not use his public 
office for his own private gain, . . . or for the private gain 
of friends, relatives, or persons with whom the employee is 
affiliated in a nongovernmental capacity.'' 5 C.F.R. 
Sec. 2635.702. See also Office of Government Ethics, Report to 
the Secretary of the Treasury pp. 2-4 (July 31, 1994).
    It is also contrary to the OGE's Standards of Ethical 
Conduct for a public employee to misuse nonpublic information. 
See 5 C.F.R. Sec. 2635.703 (``An employee shall not . . . allow 
the improper use of nonpublic information to further his own 
private interest or that of another, whether through advice or 
recommendation, or by knowing unauthorized disclosure.''). A 
similar regulation promulgated by the Executive Office of the 
President provides: ``For the purpose of furthering a private 
interest, an employee shall not . . . directly or indirectly, 
use, or allow the use of, official information obtained through 
or in connection with his Government employment which has not 
been made available to the general public.'' 3 C.F.R. 
Sec. 100.735-18.
    The underlying issues related to Whitewater and Madison 
arose prior to the inauguration of President Clinton. The only 
Whitewater issues arising after the inauguration of the 
President involve the improper contacts between the White House 
and various other government agencies that were investigating 
Madison and Whitewater, including the Department of the 
Treasury, the RTC, and the SBA. If such contacts had not taken 
place, there would be no investigation into events occurring 
after the President's inauguration. The White House Counsel's 
office cannot bootstrap its improper handling of information 
about Whitewater and Madison into a justification for its 
participation in underlying Whitewater matters.

ii. No ``official'' attorney-client privilege may be asserted against a 
                         congressional subpoena

    Even assuming there was an official interest of the 
presidency at stake in underlying Whitewater matters discussed 
at the November 5 meeting, no ``official'' attorney-client 
privilege can shield communications by government lawyers from 
disclosure to a congressional committee.
    The acceptance of an absolute attorney-client privilege to 
shield all communications within the Executive Branch at which 
any one of its numerous attorneys is present would give the 
Executive Branch the power substantially to impair the 
Congress's ability to perform its constitutional responsibility 
to ``probe[] into departments of the Federal Government to 
expose corruption, inefficiency or waste.'' Watkins v. United 
States, 354 U.S. 178, 184 (1957).
    The submissions to the Committee by counsel for the White 
House and the President and Mrs. Clinton fail to provide any 
support for the existence of an official governmental attorney-
client privilege against the Congress. In prior instances in 
which committees of the Senate or the House have chosen to 
respect properly supported claims of attorney-client privilege, 
as far as the Committee has been able to determine, the 
privilege was asserted in each case on behalf of a private 
individual or organization, not by another branch of the 
government.
    The precedents that White House and personal counsel have 
cited in support of their assertion of a governmental attorney-
client privilege have all been cases in which a government 
agency has asserted the privilege in the context of either 
civil litigation, or a FOIA action, against a private party. 
See, e.g., Green v. Internal Revenue Service, 556 F. Supp. 79, 
85 (N.D. Ind. 1982); Jupiter Painting Contracting Co. v. United 
States, 87 F.R.D. 593, 598 (E.D. Pa. 1980). None of the cases 
cited supports the invocation of the attorney-client privilege 
in a matter involving Congress.
    The opinion of the Office of Legal Counsel of the 
Department of Justice (``OLC'') relied upon by counsel for the 
White House and the President and Mrs. Clinton actually refutes 
the assertion of the attorney-client privilege in the context 
of a congressional inquiry. Although quoting from a passage of 
the OLC opinion generally stating the applicability of 
attorney-client privilege for government agencies, the 
submissions by counsel for the White House and the President 
and Mrs. Clinton tellingly omit the portion of the opinion that 
directly recognizes that there is no such privilege in the 
specific context of a congressional subpoena:

          The attorney-client privilege is a common law 
        evidentiary privilege which has been codified in Rule 
        501 of the Federal Rules of Evidence and Rule 26 of the 
        Federal Rules of Civil Procedure for use in civil 
        litigation and discovery. While the Rules are not 
        applicable to congressional subpoenas, the interests 
        implicated by the attorney-client privilege are 
        subsumed under a claim of executive privilege when a 
        dispute arises over documents between the Executive and 
        Legislative Branches, and the considerations of 
        separation of powers and effective performance of 
        constitutional duties determine the validity of the 
        claim of privilege.

6 Op. Off. of Legal Counsel 481, 494 n.24 (1982) (emphasis 
added); accord 10 Op. Off. of Legal Counsel 91, 104 (1986) 
(``Although the attorney-client privilege may be invoked by the 
government in litigation and under the Freedom of Information 
Act separately from any `deliberative process' privilege, it is 
not generally considered to be distinct from the executive 
privilege in any dispute between the executive and legislative 
branches.'') (footnote omitted and emphasis added).
    The White House has, of course, expressly stated that it 
has not asserted, and is not asserting, executive privilege 
with regard to the Kennedy notes. And executive privilege is 
understood to be only a qualified privilege and may be required 
to yield in the face of a showing of need for the performance 
of constitutional duties by another branch. See United States 
v. Nixon, 418 U.S. at 705-713. Accordingly, having disclaimed 
reliance on executive privilege (the only governmental 
privilege that, according to the OLC, could even be arguably 
applied to shield Mr. Kennedy's notes from congressional 
scrutiny), the White House may not properly base any 
instruction to Mr. Kennedy not to produce his notes on an 
assertion of a supposed official attorney-client privilege by 
the Executive Branch against the Congress.

   iii. No ``common interest'' exists between the President and Mrs. 
   Clinton's private interests and the interests of the United States

    The Committee rejects the argument of counsel for the 
President and Mrs. Clinton and the White House that the 
communications made during the November 5 meeting are 
privileged, notwithstanding the presence of two sets of lawyers 
representing different clients, on grounds that the lawyers 
representing the President's official interests, and those 
representing his private interests, shared a common interest. 
(Williams & Connolly, 12/12/95 Memo. pp. 26-31; White House, 
12/12/95 Mem. pp. 15-17). Although the Committee does not rule 
out the possibility that the common interest or joint defense 
theory might apply to government attorneys, cf. United States 
v. AT&T, 642 F.2d 1285 (D.C. Cir. 1980) (recognizing that 
government lawyers and private lawyers may share a common 
interest with respect to work product), the Clintons' private 
interests were simply not in common with the government's 
official interests in these matters.
    The Clintons' private interest was to avoid any liability 
to the public arising out of the failure of Madison Guaranty, 
the Rose Law Firm's representation of Madison in certain 
questionable transactions, the Clintons' investment in 
Whitewater, or any tax deficiency. The Clintons' interest was 
thus directly antagonistic to the government's interest in 
attempting to determine whether such liability exists and if so 
to pursue appropriate remedies for that liability.
    In sum, the presence of four government lawyers at the 
November 5 meeting, whose allegiance and duty runs to the 
United States and not to the personal legal interests of the 
President and Mrs. Clinton, bars application of the attorney-
client privilege.
            c. The presence of Bruce Lindsey at the November 5 meeting 
                    precludes the assertion of the attorney-client 
                    privilege
    Standing alone, the presence of Bruce Lindsey at the 
November 5 meeting makes untenable any assertion of attorney-
client privilege. Although Mr. Lindsey is a lawyer, on November 
5, 1993, he was not serving the President in a legal capacity. 
Thus, because there was no attorney-client relationship between 
Mr. Lindsey and Bill Clinton on November 5, 1993, his presence 
at the meeting destroyed any privilege.
    ``A communication is not privileged simply because one of 
the parties to it is a lawyer.'' United States v. Townsley, 843 
F.2d 1070, 1086 (8th Cir. 1988) (internal quotation marks and 
citations omitted). Rather, the attorney-client privilege can 
apply only where the client ``seeks confidential advice from a 
lawyer in his or her capacity as such.'' Holland v. Island 
Creek Corp., 885 F. Supp. 4, 8 (D.D.C. 1995).
    The Committee concludes that Mr. Lindsey was not acting in 
a lawyer's capacity when he attended the November 5 meeting. As 
of November 1993, Bruce Lindsey held three titles: Assistant to 
the President, Senior Advisor, and Director of the Office of 
Presidential Personnel. (Lindsey, 12/28/95 Hrg. p. 203; 
Lindsey, Dep. 7/12/95 p. 11). He was not at that time a member 
of the White House Counsel's office. Accordingly, Mr. Lindsey's 
formal duties were not legal ones.
    Although the President and Mrs. Clinton assert that ``Mr. 
Lindsey had done legal work for the Office of the President 
analyzing various `Whitewater' issues as they emerged in the 
fall of 1993'' (Williams & Connolly, 12/12/95 Mem. p. 15), this 
claim is completely contradicted by Mr. Lindsey's own sworn 
testimony. Mr. Lindsey has testified that during 1993 the only 
official actions that he took relating to Whitewater involved 
responding to press inquiries. (S. Hrg. 103-889, ``Hearings 
Relating to Madison Guaranty S&L and the Whitewater Development 
Corporation--Washington, DC Phase, Before the Committee on 
Banking, Housing and Urban Affairs, United States Senate,'' 
103rd Cong., 2d Sess., Aug. 4, 1994 pp. 357-358). When asked a 
series of questions about his duties in the fall of 1993, Mr. 
Lindsey failed to identify any legal responsibilities. 
(Lindsey, 7/21/93 Dep. pp. 20-23). Mr. Lindsey further 
testified that what Whitewater-related duties he did have at 
that time did not involve giving advice to the President: 
``There was no advice involved in this.'' (Lindsey, 7/21/93 
Dep. p. 39).9
    \9\ Counsel for the President and Mrs. Clinton assert that at the 
November 5 meeting Mr. Lindsey was acting not only as a lawyer but also 
a client. (Williams & Connolly, 12/12/95 Mem. p. 31 n.20). Mr. Lindsey 
himself, however, testified that with respect to the November 5 meeting 
the client was the President. (Lindsey, 11/28/95 Hrg. p. 179).
---------------------------------------------------------------------------
            d. The November 5 meeting is not privileged because the 
                    propriety of the meeting itself is the subject of 
                    the committee's investigation
    The attorney-client privilege does not apply ``when the 
communication between the client and his lawyer furthers a 
crime, fraud, or other misconduct.'' United States v. White, 
887 F.2d 267, 271 (D.C. Cir. 1989) (emphasis added); see also 
In re Sealed Case, 754 F.2d 395, 399 (D.C. Cir. 1985) (same); 8 
Wigmore, Evidence Sec. 2298, at 573. ``Precedent and authority 
also recognize that not just technical crimes or frauds are 
excluded from the attorney-client privilege. . . . We believe 
that the principle served by both the attorney-client privilege 
and the crime-fraud exception is that communications in 
furtherance of some sufficiently malignant purpose will not be 
protected.'' In re St. Johnsbury Trucking Co., 184 B.R. 444, 
456 (D. Vt. Bankr. 1995).
    The Committee believes that no claim of privilege should be 
recognized with respect to the November 5 meeting because the 
communications made in connection with that meeting are 
themselves at issue in this investigation. This Committee is 
investigating whether the White House improperly handled 
confidential information regarding Whitewater-related matters. 
As noted earlier, several of those who attended the November 5 
meeting had recently come into possession of confidential 
information which would have been improper to reveal to the 
Clintons' personal counsel. The Committee is entitled to probe 
what use, if any, was made of this confidential information at 
the November 5 meeting.
            e. The President and Mrs. Clinton have waived any privilege 
                    that applied to the November 5 meeting
    In any event, President and Mrs. Clinton cannot assert the 
attorney-client privilege with respect to the November 5 
meeting because any such privilege has been waived. White House 
spokesperson Mark Fabiani has made statements to the press in 
which he characterized the November 5 meeting and discussed the 
subject matter of the meeting.
    It is well established that the voluntary disclosure of a 
privileged communication to a third party has the effect of 
waiving the privilege, not only as to what was actually 
revealed but to all communications relating to the same subject 
matter. See, e.g., In re Sealed Case, 877 F.2d 976, 980-981 
(D.C. Cir. 1989). The rationale for the rule is simple: it 
would be unfair and potentially misleading to allow a party 
selectively to divulge part of a privileged communication while 
withholding the rest. As Dean Wigmore has explained:

          [W]hen [the client's] conduct touches a certain point 
        of disclosure, fairness requires that his privilege 
        shall cease whether he intended that result or not. He 
        cannot be allowed, after disclosing as much as he 
        pleases, to withhold the remainder. It is therefore 
        designed to prevent the client from using the attorney-
        client privilege offensively, as an additional weapon. 
        8 Wigmore, Evidence, Sec. 2327, at 636.

    Here, the White House has disclosed sufficient information 
about the substance of the November 5 meeting so as to require 
disclosure of the remainder. According to the Associated Press, 
White House spokesperson Mark Fabiani has said that ``the 
discussion [at the November 5 meeting] did not include any 
suggestion that the aides gather more information about an 
ongoing criminal investigation of Arkansas judge David Hale,'' 
and that ``the meeting did not cover a decision made the day 
before by Clinton appointed U.S. attorney in Little Rock to 
remove herself from Whitewater criminal investigations, 
including the Hale case.'' (The News & Observer, 11/29/95 p. 
A6). The Associated Press also has reported that ``Fabiani said 
his information was based on notes that Kennedy took at the 
meeting. (The News & Observer, 11/29/95 p. A6). And the Wall 
Street Journal has reported that ``White House officials insist 
that the meeting was a routine consultation necessitated by the 
Clinton's retaining new attorneys and that the White House 
didn't pass along any significant confidential information from 
Government files about Whitewater or the business dealings of 
former municipal judge David Hale.'' (Wall Street Journal, 12/
6/95 p. B8) (emphasis added). The White House cannot both 
``spin'' what happened at the meeting and invoke the privilege.

3. The work product doctrine does not shield the Kennedy notes from 
        disclosure to the committee

    In addition to asserting the attorney-client privilege, the 
President and Mrs. Clinton contend that the so-called ``work 
product'' doctrine protects the Kennedy notes from disclosure 
to the Committee. The work product doctrine shields from 
disclosure in some instances work prepared by an attorney in 
anticipation of litigation. See Hickman v. Taylor, supra. ``The 
party seeking to assert the attorney-client privilege or the 
work product doctrine as a bar to discovery has the burden of 
establishing that either or both is applicable.'' 
Barclaysamerican Corp. v. Kane, 746 F.2d 653, 656 (10th Cir. 
1984).
    The notes in question are the work product of Mr. Kennedy. 
There is no evidence, however, that Mr. Kennedy was acting in 
anticipation of litigation during November 5 meeting. Quite to 
the contrary, Mr. Kennedy has testified that he was not 
representing anyone at the meeting. (Kennedy, 11/28/95 Hrg. pp. 
44, 46).
    Moreover, ``the work product doctrine is clearly a 
qualified privilege which may be defeated by a showing of good 
cause.'' Central Nat'l Ins. Co. v. Medical Protection Co., 107 
F.R.D. 393, 395 (E.D. Mo. 1985) (citing Hickman); accord 
Armstrong v. Trico Marine, Inc., No 89-4309, U.S. Dist. Lexis 
2434, *3 (E.D. La. Feb. 26, 1992). Indeed, when first 
recognizing the work product doctrine, the Supreme Court 
specifically stated that ``we do not mean to say that all 
materials obtained or prepared . . . with an eye toward 
litigation are necessarily free from discovery in all cases.'' 
Hickman, 329 U.S. at 511.
    The Committee has determined that it must have access to 
Mr. Kennedy's notes of the November 5 meeting if it is to 
discharge responsibly its constitutional oversight function. In 
the Committee's view, this constitutes sufficient cause to 
override any claim based upon the work product doctrine.

 D. comparative effectiveness of a civil action or a certification to 
          the United States attorney for criminal prosecution

    The Committee has considered the comparative effectiveness 
of a civil action to enforce the Committee's subpoena compared 
to an immediate referral to the United States Attorney for a 
criminal prosecution.\10\
    \10\ The Senate has not used in decades its power to try a 
recalcitrant witness before the bar of the Senate, as the available 
judicial remedies have proven adequate.
---------------------------------------------------------------------------
    In a civil action under 28 U.S.C. Sec. 1365 (1994), the 
Committee would apply, upon authorization of the Senate, to the 
United States District Court for the District of Columbia for 
an order requiring the witness to produce the subpoenaed 
documents. If the district court determines that the witness 
has no valid reason to refuse to produce the subpoenaed 
documents, the court would direct the witness to produce them. 
Disobedience of that order would subject the witness to 
sanctions to induce compliance. The witness could free himself 
of the sanctions by producing the subpoenaed documents. 
Sanctions could not continue beyond the Senate's need for the 
subpoenaed documents.
    The civil enforcement statute excludes from its coverage 
actions against ``an officer or employee of the Federal 
Government acting within his official capacity.'' 28 U.S.C. 
Sec. 1365(a) (1994). The legislative history of this provision 
explains that this limitation ``should be construed narrowly. 
Therefore, a subpena against Federal government officers or 
employees not acting within the scope of their official duties 
is not excluded from the coverage of this jurisdictional 
statute.'' Public Officials Integrity Act of 1977, S. Rep. No. 
170, 95th Cong., 1st Sess. 92 (1977) (emphasis added).
    The Committee has concluded that section 1365(a) does not 
bar an action against Mr. Kennedy, who is now a private 
citizen. Section 1365(a) was enacted so that disputes between 
the Legislative and Executive Branches implicating separation 
of powers concerns would be resolved extra-judicially. 
President Clinton, however, has not invoked executive privilege 
with respect to the Kennedy notes but only the attorney-client 
privilege. In any event, Mr. Kennedy was not acting within his 
official capacity during the November 5 meeting. Mr. Kennedy 
testified that ``I was not at that meeting representing 
anyone.'' (Kennedy, 12/5/95 Hrg. p. 44; see also id. at 46).
    The fact that Mr. Kennedy kept his notes of the November 5 
meeting after he left government service further supports the 
Committee's view that he was not acting within the scope of his 
official activities.
    In a criminal referral under 2 U.S.C. Sec. Sec. 192, 194 
(1994), the Senate would direct the President pro tempore to 
certify to the United States Attorney for the District of 
Columbia the facts concerning the witness' refusal to produce 
the subpoenaed documents. The United States Attorney would then 
present the matter to a grand jury, which could indict the 
witness for contempt of Congress. If convicted, the witness 
could receive a sentence of up to a year in prison and a 
$100,000 fine.
    The Committee recommends that the Senate bring a civil 
action to compel Mr. Kennedy to comply with the Committee's 
subpoena. The Committee's objective is to obtain Mr. Kennedy's 
notes of the November 5 meeting and any other documents he may 
possess responsive to the Committee's subpoena. Civil 
enforcement will likely satisfy that objective since failure to 
comply with the subpoena would result in the imposition of a 
coercive sanction. At the same time, the Committee understands 
that, in refusing to comply with the Committee's subpoena, Mr. 
Kennedy has been acting upon the instruction of counsel for the 
President and Mrs. Clinton and the White House. The Committee 
is not inclined at this time to seek criminal punishment of Mr. 
Kennedy for the decisions of others.
    Accordingly, the Committee recommends that the Senate 
authorize a civil enforcement proceeding to compel Mr. Kennedy 
to comply with the Committee's subpoena.

                       Committee's Rollcall Vote

    In compliance with paragraph 7 (b) and (c) of rule XXVI of 
the Standing Rules of the Senate, the record of the rollcall 
vote of the Special Committee to Investigate Whitewater 
Development Corporation and Related Matters to report the 
original resolution favorably was as follows:
        YEAS                          NAYS
Mr. D'Amato                         Mr. Sarbanes
Mr. Shelby                          Mr. Dodd
Mr. Bond                            Mr. Kerry
Mr. Mack                            Mr. Bryan
Mr. Faircloth                       Mrs. Boxer
Mr. Bennett                         Ms. Moseley-Braun
Mr. Grams                           Mrs. Murray
Mr. Domenici                        Mr. Simon
Mr. Hatch
Mr. Murkowski
                             MINORITY VIEWS

Special Committee to Investigate Whitewater Development Corporation and 
                            Related Matters

                            I. Introduction

    The President's lawyers have made a well founded assertion, 
supported by respected legal authorities, that the November 5, 
1993 meeting at Williams & Connolly was protected by the 
attorney-client privilege. If the President's lawyers are 
correct in their assertion, then the production of William 
Kennedy's notes of the meeting to the Special Committee could 
result in a general waiver of the Clintons' attorney-client 
privilege that might go far beyond the discussions at the 
November 5, 1993 meeting.
    The President's lawyers have made several constructive 
proposals to resolve the conflict over Kennedy's notes. The two 
most recent proposals made by the White House have included 
offers to produce Kennedy's notes to the Special Committee as 
soon as steps are taken to protect the Clintons from a general 
waiver of the attorney-client privilege.
    The Special Committee has agreed that the production of 
Kennedy's notes should not act as a general waiver of the 
attorney-client privilege. The only remaining hurdle to 
production of the notes is agreement by the Independent 
Counsel, the House, and other investigative entities that 
production of the notes would not constitute a general waiver.
    We believe that these concerns about a general waiver of 
the attorney-client privilege are meritorious and that the 
Senate should make additional efforts to accommodate them 
before sending the matter to federal court.
    It always should be borne in mind that when the Executive 
and Legislative Branches fail to resolve a dispute between them 
and instead submit their disagreement to the courts for 
resolution, an enormous power is vested in the Judicial Branch 
to write rules that will govern the relationship between the 
elected branches. In any particular case there may be an 
advantage gained for one or the other elected branches through 
a judicial ruling. However, there also are considerable risks 
in calling on the courts to prescribe rules to govern the 
extent of the vital tool of congressional investigatory power.
    Thus, while the Committee might prevail, every Senator who 
votes on this resolution must recognize that an adverse 
precedent could be established that would make it more 
difficult for all congressional committees to conduct important 
oversight and other investigatory functions. Since a mutually 
acceptable resolution is close at hand, we strongly urge the 
Senate not to precipitate unnecessary litigation by passing 
this resolution.

               II. The November 5, 1993 Lawyers' Meeting

    On November 4, 1993, President and Mrs. Clinton retained 
attorney David Kendall of the law firm of Williams & Connolly 
to represent them in their personal capacities in all matters 
related to Whitewater. On November 5, 1993, in an effort to 
familiarize himself with Whitewater and to determine an 
appropriate division of labor between private and government 
counsel, Mr. Kendall convened a meeting at his law offices 
attended by several of the Clintons' past personal attorneys 
and by White House attorneys representing the President in his 
official capacity.
    The following attorneys attended the November 5, 1993 
meeting at the offices of Williams & Connolly: (1) Kendall; (2) 
Stephen Engstrom, a lawyer in private practice in Little Rock 
who had been retained by the Clintons to represent them on 
Whitewater-related matters; (3) James Lyons, a lawyer in 
private practice in Denver who had provided legal services to 
the Clintons relating to Whitewater since 1992; (4) White House 
Counsel Bernard Nussbaum; (5) Associate White House Counsel 
Neil Eggleston; (6) Associate White House Counsel William 
Kennedy, who had represented the Clintons in a matter related 
to Whitewater before joining the White House staff; and (7) 
Bruce Lindsey, a senior lawyer on the White House staff who had 
represented President Clinton personally before January 20, 
1993 and who had analyzed legal aspects of Whitewater-related 
issues as they emerged in the fall of 1993. No non-lawyers 
attended.
    In a legal memorandum submitted to the Special Committee on 
December 12, 1995, the White House described the dual private 
and public purposes of the November 5, 1993 lawyers' meeting as 
follows:

          The primary purpose of the November 5 meeting was to 
        brief the new private counsel hired by the Clintons. 
        That briefing was carried out by the private and 
        governmental lawyers who had handled various private or 
        public aspects of these matters for the President. But 
        the meeting also served important governmental 
        purposes. This meeting came immediately on the heels of 
        news stories about ``Whitewater.'' The appearance of 
        the numerous news accounts made clear that the matter 
        was no longer just an official news story to be handled 
        by the White House. Rather, certain aspects of the 
        matter would require the representation of the 
        President by a private attorney. Thus, the meeting 
        resulted from the need to ensure the proper allocation 
        of responsibilities between government lawyers, who 
        have an obligation to address the official components 
        of this matter, and the private attorneys, who would 
        address the personal legal aspects of the matter.

    Several legal scholars who have examined the November 5, 
1993 meeting have concluded that a valid claim of privilege has 
been asserted. For example, University of Pennsylvania law 
professor Geoffrey C. Hazard, Jr., a specialist in legal ethics 
and the attorney-client privilege, provided a legal opinion 
that communications between White House lawyers and the 
President's private lawyers are protected by the attorney-
client privilege.1 Professor Hazard reasoned that the 
President ``has two sets of lawyers, engaged in conferring with 
each other. On that basis there is no question that the 
privilege is effective. Many legal consultations for a client 
involve the presence of more than one lawyer.'' Professor 
Hazard added that the President has ``two legal capacities, 
that is, the capacity ex officio--in his office as President--
and the capacity as an individual.'' Thus, there are ``two 
`clients,' '' and the matters discussed at the meeting ``were 
of concern to the President in each capacity as client.'' Since 
the lawyers for the two different clients conferred about 
matters of mutual concern to each client, ``the attorney-client 
privilege is not lost by either client.''
    \1\ December 14, 1995 letter from Geoffrey C. Hazard, Jr. to John 
M. Quinn. A copy of this letter is attached as Exhibit A to this 
report.
---------------------------------------------------------------------------
    Other legal experts agree with Professor Hazard's analysis. 
New York University law school professor Stephen Gillers stated 
the following:

          The oddity here is that Clinton is in both sets of 
        clients, in one way with his presidential hat on and in 
        one way as a private individual. The lawyers who 
        represent the President have information that the 
        lawyer who represents the Clintons legitimately needs, 
        and that's the common interest. It's true that 
        government lawyers cannot handle the private matters of 
        government officials. However, perhaps uniquely for the 
        President, private and public are not distinct 
        categories so while the principle is clear the 
        application is going to be nearly impossible.2
    \2\ Id.

University of Colorado law professor Christopher Mueller stated 
that ``[b]oth as chief executive and as a citizen the President 
has a right to counsel'' and ``the fact that he's the President 
of the United States doesn't mean that he lacks the 
privilege.'' 3
    \3\ R. Marcus and S. Schmidt, ``Legal Experts Uncertain on 
Prospects of Clinton Privilege Claim,'' Washington Post, Dec. 14, 1995 
at A13.
---------------------------------------------------------------------------

           III. White House Proposals to Resolve the Conflict

    The Special Committee has informed the White House that its 
two principal investigative interests regarding the November 5, 
1993 meeting are (1) determining whether White House officials 
transmitted confidential government information concerning 
Madison Guaranty or Whitewater to the Clintons' private 
lawyers, and (2) determining whether the private lawyers 
directed or encouraged the White House officials to use their 
government offices to obtain governmental information relating 
to Whitewater.
    With the Special Committee's interests in mind, Kendall met 
with Senators D'Amato and Sarbanes on December 7, 1995 and 
proposed a framework intended to enable the Committee to obtain 
the information necessary to satisfy its legitimate 
investigative needs without invading the Clintons' attorney-
client privilege. Specifically, Kendall proposed that the 
Committee take the following investigative steps: (1) ask every 
White House official present at the November 5, 1993 meeting 
what he knew about relevant official government information at 
the beginning of the meeting; (2) assume that the White House 
officials present at the meeting communicated to the private 
lawyers everything they knew about such information; (3) ask 
the White House officials general questions about the purposes 
of the meeting; (4) test the responses it receives about the 
meeting's purposes by asking what steps White House officials 
took following the meeting; and (5) ask the White House 
officials why they took whatever steps they took following the 
meeting, including whether they took these steps as a result of 
anything that occurred at the meeting. The Majority rejected 
Kendall's proposal, claiming that it did not permit sufficient 
inquiry into the content of the November 5, 1993 meeting.
    The White House made a new proposal on December 14, 1995 
that included an offer to produce Kennedy's notes to the 
Special Committee. In a letter from Special Counsel to the 
President Jane Sherburne, the White House offered to produce 
the notes if the Committee would accept certain conditions 
intended to protect against a general waiver of the attorney-
client privilege. The conditions proposed by the White House 
were: (1) the Committee would acknowledge that the November 5, 
1993 meeting was privileged; (2) the Committee would agree not 
to take the position in any forum that the production of the 
notes constituted a general waiver of the attorney-client 
privilege; (3) the Committee would agree to limit its 
testimonial inquiry regarding the meeting to the White House 
officials present; (4) the Committee would obtain the 
concurrence in these terms of the Independent Counsel and other 
relevant investigative entities; and (5) the Committee would 
adopt a rule requiring that any future effort to obtain 
attorney-client privileged material from the White House be 
undertaken on a bipartisan basis. The Majority agreed to 
conditions (2) and (3) but rejected conditions (1), (4) and 
(5).
    The White House made a third proposal on December 18, 1995, 
in response to statements by the Chairman of the Special 
Committee indicating a willingness to contact the Independent 
Counsel to urge that he, too, agree not to argue that 
production of the Kennedy notes would constitute a general 
waiver of the attorney-client privilege. The White House letter 
made clear that its principal concern remained the waiver 
issue. Accordingly, the White House offered to modify condition 
(1) to require simply that the Committee acknowledge that a 
reasonable claim of privilege had been asserted, and the White 
House offered to drop condition (5) altogether.
    As to condition (4), the December 18, 1995 White House 
letter indicated that counsel for the President were in the 
process of seeking to secure the participation of the 
Independent Counsel and other investigative entities in non-
waiver agreements. The White House letter then stated: ``We 
would like to meet with you as soon as possible to determine 
how we can best work with the Committee to secure promptly such 
agreements.''
    The Majority's Special Counsel wrote back to the White 
House later on December 18, 1995 and rejected the White House's 
proposal. The Majority's letter indicated that the Committee 
would not ``interpos[e] itself between the White House and 
other investigators'' by assisting the White House in securing 
non-waiver agreements. The Majority also refused to acknowledge 
that a reasonable claim of privilege had been asserted.

            IV. Legitimate Privilege Issues Have Been Raised

    The White House and Williams & Connolly have presented 
legitimate and cogent arguments, summarized below, that the 
November 5, 1993 meeting is protected by several well-
established privileges: the attorney-client privilege; the 
common interest doctrine; and the work product doctrine.4 
These protections apply equally to discussions during the 
meeting and to Mr. Kennedy's notes memorializing those 
discussions.
    \4\ The memoranda submitted by the White House and Williams & 
Connolly are attached as Exhibits B and C, respectively.
---------------------------------------------------------------------------

                   1. The Attorney-Client Privilege.

    The Supreme Court has stated that the attorney-client 
privilege ``is the oldest of the privileges for confidential 
communications known to the common law.'' 5 The purposes 
of the privilege are ``to encourage full and frank 
communications between attorneys and their clients'' and ``to 
protect not only the giving of professional advice to those who 
can act on it but also the giving of information to the lawyer 
to enable him to give sound and informed advice.'' 6 The 
privilege applies in both directions: to communications from 
the client to the attorney and to communications from the 
attorney to the client.7 Moreover, the privilege applies 
with equal force among a client's attorneys, whether or not the 
client is present during the conversation.8 It is well-
settled that the attorney-client privilege extends to written 
materials reflecting the substance of an attorney-client 
communication.9
    \5\ Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (citing 8 
J. Wigmore, Evidence Sec. 2290 (McNaughton rev. 1961)).
    \6\ Id. at 389-91.
    \7\ Schwimmer v. United States, 232 F.2d 855 (8th Cir.), cert. 
denied, 352 U.S. 833 (1956).
    \8\ See, e.g., Natta v. Zletz, 418 F.2d 633, 637 (7th Cir. 1969) 
(``correspondence between house and outside counsel . . . clearly fall 
within the ambit of the attorney-client privilege''); Green v. IRS, 556 
F. Supp. 79, 85 (N.D. Ind. 1982) (attorney-client privilege ``applies 
equally to inter-attorney communications''), aff'd without op., 734 
F.2d 18 (7th Cir. 1984); Foseco Int'l Ltd. v. Fireline Inc., 546 F. 
Supp. 22, 25 (N.D. Ohio 1982) (``the Court finds that the 
communications between Foseco's U.S. patent counsel and local counsel 
in Washington, D.C. were confidential communications and, therefore, 
subject to the attorney-client privilege'').
    \9\ See Green v. IRS, 556 F. Supp. at 85 (privilege applies to ``an 
attorney's notes containing information derived from communications to 
him from a client. That information is entitled to the same degree of 
protections from disclosure as the actual communication itself''); 
Natta v. Zletz, 418 F.2d at 637 n.3 (``insofar as inter-attorney 
communications or an attorney's notes contain information which would 
otherwise be privileged as communications to him from a client, that 
information should be entitled to the same degree of protection from 
disclosure. To hold otherwise merely penalizes those attorneys who 
write or consult with additional counsel representing the same client 
for the same purpose. As such it would make a mockery of both the 
privilege and the realities of current legal assistance.'').
---------------------------------------------------------------------------
    In this instance, every person present at the November 5, 
1993 meeting was an attorney who represented the Clintons in 
either their personal or their official capacities. Kendall, 
Engstrom and Lyons were acting as personal legal counsel for 
the Clintons at the time of the meeting. Nussbaum, Kennedy and 
Eggleston served in the White House Counsel's Office and 
represented the Clintons in their official capacities. Lindsey 
had previously represented Mr. Clinton and at the time of the 
meeting was assisting the President in his official capacity by 
gathering information and providing legal advice on Whitewater-
related matters. All seven attorneys intended the 
communications at the November 5, 1993 meeting to remain 
confidential. Moreover, the meeting was essential in order to 
allow the attorneys to provide effective legal representation 
to the Clintons and to allow the attorneys to apportion 
official and private tasks as appropriate. Because this meeting 
was held for the purpose of enabling them to provide legal 
assistance to the Clintons, a court could reasonably be 
expected to hold that the communications at the meeting fall 
within the ambit of the attorney-client privilege.
    Even if Lindsey was not acting as Mr. Clinton's lawyer at 
the meeting, as the Majority has asserted, his presence did not 
vitiate the privilege because he served as a counselor to and 
agent of the President. Specifically, Lindsey imparted 
information necessary to enable both personal and White House 
counsel to represent the President effectively, and he received 
information and advice necessary for him to assist the proper 
functions of the Office of the President. Courts have held that 
a client's agent such as Lindsey may meet with counsel in 
furtherance of the attorney-client relationship.10
    \10\ See, e.g., Foseco Int'l Ltd. v. Fireline, Inc., 546 F. Supp. 
at 25; Farmaceutisk Laboratorium Ferring A/S v. Reid Rowell, Inc., 864 
F. Supp. 1273, 1274 (N.D. Ga. 1994).
---------------------------------------------------------------------------

                    2. The Common Interest Doctrine.

    The common interest doctrine enables counsel for clients 
with common interests ``to exchange privileged communications 
and attorney work product in order to adequately prepare a 
defense without waiving either privilege.'' 11 The 
November 5, 1993 meeting entailed all of the elements necessary 
for a valid assertion of the common interest privilege. All of 
the attorneys represented the Clintons in either their private 
or their official capacities. All shared the common interest of 
representing the Clintons--both personally and officially--with 
respect to Whitewater-related matters. Finally, the attorneys 
met in private at the law offices of the Clintons' personal 
counsel and considered their conversation to be 
confidential.12 The presence of White House attorneys at 
the meeting does not vitiate the privilege, since private and 
government attorneys may share a common interest.13
    \11\ Haines v. Liggett Group, Inc., 975 F.2d 81, 94 (3d Cir. 1992); 
see also Waller v. Financial Corp. of America, 828 F.2d 579, 583 n.7 
(9th Cir. 1987) (``communications by a client to his own lawyer remain 
privileged when the lawyer subsequently shares them with co-defendants 
for purposes of a common defense'').
    \12\ The privilege encompasses notes and memoranda of statements 
made at meetings among counsel and their clients with a common 
interest, as well as the statements themselves. In re Grand Jury 
Subpoena Dated Nov. 16, 1974, 406 F. Supp. 381, 384-94 (S.D.N.Y. 1975).
    \13\ United States v. American Telephone and Telegraph, Co., 642 
F.2d 1285, 1300-01 (D.C. Cir. 1980) (applying the common interest 
privilege to materials shared between MCI and the government).
---------------------------------------------------------------------------
    Leading legal experts in the field have supported the 
assertion of privilege here. Professor Hazard has reviewed the 
events of November 5, 1993 and concluded that: ``Inasmuch as 
the White House lawyers and the privately engaged lawyers were 
addressing a matter of common interest to the President in both 
legal capacities, the attorney-client privilege is not waived 
or lost as against third parties.'' 14 Professor Gillers, 
in concluding that the meeting was privileged, noted that 
``[t]he lawyers who represent the President have information 
that the lawyer who represents the Clintons needs, and that's 
the common interest.'' 15
    \14\ December 14, 1995 Hazard letter (Exhibit A) at p. 2.
    \15\ R. Marcus and S. Schmidt, ``Legal Experts Uncertain on 
Prospects of Clinton Privilege Claim,'' Washington Post, Dec. 14, 1995 
at A13.
---------------------------------------------------------------------------

                      3. The Work Product Doctrine

    The work product doctrine is ``broader than the attorney-
client privilege; it protects materials prepared by the 
attorney, whether or not disclosed to the client, and it 
protects material prepared by agents for the attorney.'' 
16 The work product doctrine protects ``the work of the 
attorney done in preparation for litigation.'' 17 
Litigation need only be contemplated at the time the work is 
performed, 18 and the term litigation is defined broadly 
to encompass administrative and federal investigations.19 
Furthermore, work product which reveals counsel's ``opinions, 
judgments, and thought processes'' receives a ``higher level of 
protection, and a party seeking discovery must show 
extraordinary justification'' to obtain such materials.20
    \16\ In re Grand Jury Proceedings, 601 F.2d 162, 171 (5th Cir. 
1979) (citations omitted).
    \17\ In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 
1994).
    \18\ See Holland v. Island Creek Corp., 885 F. Supp. 4, 7 (D.D.C. 
1995).
    \19\ In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982) (applying 
work-product doctrine to documents created by counsel rendering legal 
advice in connection with SEC and IRS investigations).
    \20\ In re Sealed Case, 676 F.2d 793, 809-10 (D.C. Cir. 1982); 
accord Upjohn Co. v. United States, 440 U.S. at 401 (opinion work 
product ``cannot be disclosed simply on a showing of substantial need 
and inability to obtain the equivalent without undue hardship'').
---------------------------------------------------------------------------
    Under these standards, the President's lawyers appear to 
have made a legitimate assertion of the attorney work product 
privilege. Kennedy's notes presumably contain the mental 
impressions and opinions of the seven lawyers who met in 
confidence to discuss the legal aspects of Whitewater-related 
matters that had been raised in news articles published in late 
October and early November 1993. Equally important, the 
Committee has not demonstrated the requisite extraordinary need 
for the notes, particularly in view of the fact that Kendall 
and the White House have offered the Committee the opportunity 
to discover why the meeting was called, what was known prior to 
the meeting, who was present at the meeting, and what was done 
after the meeting was held.

V. Production of the Kennedy Notes Could Constitute a General Waiver of 
                     the Attorney-Client Privilege

    As discussed above, the White House Counsel's Office has 
informed the Special Committee that the Kennedy notes of the 
November 5, 1993 lawyers' meeting at Williams & Connolly will 
be furnished if adequate precautions are taken to protect 
against a general waiver of the attorney-client privilege. 
Thus, the principal issue remaining is the risk that producing 
the Kennedy notes to the Special Committee might be construed 
as a general waiver of the attorney-client privilege for all 
communications relating to the subject matter of the meeting.
    The Majority has asserted that production of the notes to 
the Committee would not constitute a waiver because the 
Committee has sought to compel production of the notes, and 
because a compelled production does not constitute a waiver. 
The Majority has provided some case law, discussed below, to 
support its argument.
    The problem with the Majority's argument is that it is only 
that--an argument. It does not ensure that a general waiver of 
the attorney-client privilege will not result if the notes are 
produced to the Special Committee.
     It is not surprising that when the issue is possible 
waiver of the attorney-client privilege and the client is the 
President of the United States, in either his official capacity 
or his personal capacity, careful lawyers are reluctant to 
accept something less than certainty. That is why the 
President's lawyers have agreed to produce the notes only under 
conditions that would in effect give them the assurance they 
must have on this important issue. The authorities offered by 
the Majority leave open the very real concerns identified by 
the President's lawyers.

       1. Production of Kennedy's notes could constitute a waiver

     The attorney-client privilege differs from a 
constitutional privilege, which can be waived only by a knowing 
and voluntary relinquishment of the right. The attorney-client 
privilege, in contrast, can be waived ``either by mistake or 
design.'' 21 Waiver of the attorney-client privilege most 
commonly occurs when the contents of a confidential 
communication are disclosed to a person outside the privileged 
relationship.22 Moreover, once privileged communications 
concerning a particular matter are divulged, the privilege 
generally is deemed waived for all communications concerning 
the same issue or subject matter.23
    \21\ United States Department of Justice, Criminal Division, 
``Federal Grand Jury Practice Manual,'' p. 324 (January 1993).
    \22\ American Bar Association Section of Litigation, ``The 
Attorney-Client Privilege and the Work-Product Doctrine,'' at p. 62 (2d 
ed. 1989) (hereinafter ``ABA Monograph'').
    \23\ Id., citing In re Sealed Case, 877 F.2d 976, 980-981 (D.C. 
Cir. 1989) and Hercules Inc. v. Exxon Corp., 434 F. Supp. 136, 156 (D. 
Del. 1977).
---------------------------------------------------------------------------
     It is this far-reaching aspect element of the law of 
attorney-client privilege--``subject matter waiver''--that 
creates the difficulty the Special Committee is facing here. 
Production of the Kennedy notes could be construed as a waiver 
of the attorney-client privilege as to all communications on 
the subject matter of the meeting. Potentially, such a waiver 
would encompass all communications between the President and 
his lawyers at any time up to the present that pertain to the 
subject matter of the November 5, 1993 meeting.

  2. The authorities cited by the Majority do not resolve the waiver 
                                 issue

     Majority staff has cited a few cases for the proposition 
that production of the notes to the Special Committee is 
``compelled'' and therefore would not constitute a waiver. The 
Majority relies heavily upon a footnote in a 1991 Third Circuit 
case.24 The footnote in Westinghouse indicates that the 
documents at issue in that case were produced voluntarily--and 
the production therefore constituted a waiver--because 
Westinghouse originally moved to quash the grand jury subpoena 
calling for the documents, but later withdrew the motion to 
quash and produced the documents pursuant to a confidentiality 
agreement.25
    \24\ Westinghouse Electric Corp. v. Republic of the Philippines, 
951 F.2d 1414, 1427 n. 14 (3rd Cir. 1991) (hereinafter Westinghouse).
    \25\ Id.
---------------------------------------------------------------------------
    The Majority's reliance on the Westinghouse footnote is not 
well-founded. Westinghouse could just as easily be read to 
stand for the proposition that ceasing to contest the Special 
Committee's subpoena and surrendering the Kennedy notes now, 
before a federal judge rules on the claim of privilege, would 
be a ``voluntary'' disclosure and thus would constitute a 
waiver. Whether one argument or the other is the better one 
does not matter; what matters is that the Westinghouse case 
does not provide the President's lawyers sufficient assurance 
that producing the notes will not be construed as a waiver.
     The other leading case cited by the Majority 26 also 
fails to provide any certainty on the waiver issue. In fact, 
the holding of In re Sealed Case may be to the contrary, since 
the court ruled that even an inadvertent disclosure waives the 
attorney-client privilege.27 The statement of the court in 
that case could apply equally well to the issue faced by the 
President's lawyers here:
    \26\ In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989).
    \27\ Id.

          Short of court-compelled disclosure . . . or other 
        equally extraordinary circumstances, we will not 
        distinguish between various degrees of 
        ``voluntariness'' in waivers of the attorney-client 
        privilege.28
    \28\ Id. (citations omitted).

Rather than providing comfort to the President's lawyers, the 
decision in In re Sealed Case suggests that the President's 
lawyers would risk a finding of waiver if they surrendered the 
Kennedy notes to the Special Committee before a court ordered 
production.
    The Majority has cited only one case which suggests that 
production of documents to Congress does not sustain a finding 
of waiver.29 In that case, Florida House, the court 
concluded that because the information at issue, census data, 
was provided to a House of Representatives subcommittee ``under 
the threat of Congress's power of subpoena'' there was no 
waiver. Careful analysis of the case suggests that it is not 
dispositive of the waiver issue, however.
    \29\ Florida House of Representatives v. Dept. of Commerce, 961 
F.2d 941 (11th Cir. 1992) (hereinafter Florida House)
---------------------------------------------------------------------------
    The privilege asserted in Florida House was not the 
attorney-client privilege, but rather a ``deliberative'' 
privilege afforded to government agencies under the Freedom of 
Information Act (the ``FOIA''). The attorney-client privilege 
is a special legal doctrine, based on unique policy objectives, 
and therefore precedents involving other privileges are not 
dispositive when analyzing attorney-client privilege issues. In 
Florida House the court obviously was concerned with preserving 
the deliberative privilege for the Department of Commerce, so 
it is not surprising that the court concluded that the 
Department's provision of census information to the House 
Subcommittee with oversight authority for the census did not 
waive the deliberative privilege. That holding does not control 
in an attorney-client privilege dispute where the confidences 
of a client (much less the President of the United States) are 
at issue. In any event, In re Sealed Case (not Florida House) 
would be the governing authority in litigation arising in the 
United States District Court for the District of Columbia.
    The foregoing analysis demonstrates both the complexity of 
the issues presented here and the very real risk that a subject 
matter waiver will occur if the Kennedy notes are produced to 
the Committee without satisfaction of the conditions proposed 
by the White House.

VI. Rather Than Sending This Matter to the Courts, the Committee Should 
Make Further Efforts to Negotiate a Resolution of This Dispute Based on 
             a Careful Balancing of the Interests Involved

    This dispute has escalated needlessly. The White House has 
offered to provide the Kennedy notes to the Committee and to 
permit four of the participants in the November 5, 1993 meeting 
to testify before the Committee. Rather than proceeding to the 
courts at this time, the Senate should make further efforts to 
obtain this information in a manner that protects against an 
unintended, general waiver of the attorney-client privilege.

  1. Congress historically has respected the attorney-client privilege

    Congress has long respected the attorney-client privilege. 
Indeed, the Congress first acknowledged the confidentiality of 
attorney-client discussions in 1857.30 A century later, in 
the aftermath of the McCarthy hearings, the Senate considered a 
rule that would have expressly recognized the testimonial 
privileges that traditionally are protected in litigation. The 
Senate ultimately decided that the rule was unnecessary:
    \30\ Jonathan P. Rich, Note, ``The Attorney-Client Privilege in 
Congressional Investigations,'' 88 Colum. L. Rev. 145, 152-55 (1988) 
(``Attorney-Client Privilege in Congressional Investigations'').

          With few exceptions, it has been committee practice 
        to observe the testimonial privileges of witnesses with 
        respect to communications between clergyman and 
        parishioner, doctor and patient, lawyer and client, and 
        husband and wife. Controversy does not appear to have 
        arisen in this connection.31
    \31\ Rules of Procedure for Senate Investigating Committees, 83d 
Cong., 2d Sess. 27 (Comm. Print 1955), quoted in, T. Millet, The 
Applicability of Evidentiary Privileges for Confidential Communications 
Before Congress, John Marshall Law Rev. 309, 316 (1988) (emphasis 
added).

As recently as 1990, Senate Majority Leader George Mitchell 
stated that: ``[a]s a matter of actual experience . . . Senate 
committees have customarily honored the [attorney-client] 
privilege where it has been validly asserted.'' 32
    \32\ 136 Cong. Rec. S7613 (daily ed. June 7, 1990)(Sen. Mitchell).
---------------------------------------------------------------------------
    Even in politically charged investigations, the Senate has 
respected the attorney-client privilege. During the Iran-Contra 
investigation, for example, Gen. Richard Secord and Lt. Col. 
Oliver North successfully asserted the attorney-client 
privilege in refusing to answer questions posed to them by the 
Senate Counsel.33 Similarly, during proceedings against 
Judge Alcee Hastings, the impeachment trial committee 
considered Judge Hastings' claim of attorney-client privilege 
in ruling that testimony would not be received into 
evidence.34
    \33\ ``Iran-Contra Investigation: Joint Hearings Before the House 
Select Committee to Investigate Covert Arms Transactions with Iran and 
the Senate Select Committee on Secret Military Assistance to Iran and 
the Nicaraguan Opposition,'' 100th Cong., 1st Sess. 199 (1987) 
(Secord); N.Y. Times, July 10, 1987, at A8, col.4 (North).
    \34\ ``Report of the Senate Impeachment Trial Committee on the 
Articles Against Judge Alcee L. Hastings: Hearings Before the Senate 
Impeachment Trial Comm.,'' pt. 2A, 101st Cong., 1st Sess. 64 (1989).
---------------------------------------------------------------------------
    The Senate's most recent experience with the attorney-
client privilege arose during its disciplinary proceedings 
against Senator Bob Packwood. Prior to the controversy over 
Senator Packwood's diaries, the Select Committee on Ethics 
considered Senator Packwood's assertion that certain documents 
(other than the diaries) were covered by the attorney-client or 
work-product privileges. To resolve that claim, the Ethics 
Committee appointed a former jurist (Kenneth W. Starr) as a 
hearing examiner to make recommendations to the Committee and 
accepted his recommendation that the privilege be 
sustained.35
    \35\ ``Select Committee on Ethics: Documents Related to the 
Investigation of Senator Robert Packwood,'' S. Rpt. No. 30, vol. 9, 
104th Cong., 1st Sess. 37 (1995).
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    With respect to the diaries, the Committee agreed ``to 
protect Senator Packwood's privacy concerns by allowing him to 
mask information dealing with attorney-client and physician-
patient privileged matters, and information dealing with 
personal, private family matters.'' 36 The Committee's 
hearing examiner (Judge Starr) reviewed Senator Packwood's 
assertions of attorney-client privilege. The Committee abided 
by all of the examiner's determinations and did not call upon 
the court to adjudicate any of the attorney-client privilege 
claims.
    \36\ S. Rep. No. 164, 103d Cong., 1st Sess. 2 (1993). See also 
Senate Select Committee on Ethics v. Packwood, 845 F. Supp. 17, 19 
(D.D.C. 1994).
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 2. the clintons' assertion of the attorney-client privilege deserves 
 the same respect that the Committee has afforded to witnesses in this 
                             investigation

    As noted above, the Special Committee has honored the 
attorney-client privilege on several occasions throughout its 
proceedings. During the hearing testimony of Thomas Castleton, 
for example, Chairman D'Amato confirmed that Castleton need not 
testify about conversations with his attorney.37 
Similarly, Chairman D'Amato limited questioning of Randall 
Coleman by Minority counsel regarding an interview his client, 
David Hale, granted to a reporter for The New York Times, 
during which Coleman was present.38 President and Mrs. 
Clinton deserve no less protection than was afforded to 
witnesses who have appeared before the Committee.
    \37\ Aug. 3, 1995 Hrg. at p. 31.
    \38\ Dec. 1, 1995 Hrg. at p. 45.
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    In determining whether to recognize attorney-client 
privilege claims, the Congress traditionally has weighed ``the 
legislative need for disclosure against any possible resulting 
injury.'' 39 As discussed below, the balance in this 
instance favors respecting the attorney-client privilege and 
rejecting the Resolution put forth by the Special Committee.
    \39\ Hearings, ``International Uranium Cartel,'' Subcomm. on 
Oversight and Investigations, House Comm. on Interstate and Foreign 
Commerce, 95th Cong., 1st Sess., Vol. 1, 123 (1977).
---------------------------------------------------------------------------

 3. the senate should avoid a needless constitutional confrontation by 
            pursuing a negotiated resolution to this dispute

    Congressional attempts to inquire into privileged executive 
branch communications are rare, and with good reason. By 
definition, such efforts provoke constitutional confrontations.
    Moreover, Congress' efforts to invade privileged executive 
branch communications have met with little success. The courts 
have resisted adjudicating congressional attempts to inquire 
into privileged communications. For example, the United States 
District Court for the District of Columbia (the same court 
that would hear the current dispute) refused to determine 
whether Reagan Administration E.P.A. Administrator Anne Gorsuch 
properly withheld documents subpoenaed by a committee of the 
House of Representatives. Instead, the court ``encourage[d] the 
two branches to settle their differences without further 
judicial involvement.'' 40
    \40\ United States v. House of Representatives, 556 F. Supp. 150, 
152 (D.D.C. 1983).
---------------------------------------------------------------------------
    Only once in the history of the nation have the courts 
required the disclosure of confidential Presidential 
communications; and even then, the courts ordered disclosure to 
a grand jury while denying disclosure to the Congress.41 
In the words of then-Assistant Attorney General Antonin Scalia, 
it would be ``erroneous'' to interpret that singular event ``as 
an indication that the Supreme Court is either willing or able 
to adjudicate the issue of privilege when it arises in the 
context of a Legislative-Executive dispute.'' 42
    \41\ United States v. Nixon, 418 U.S. 683, 712, n.19 (1974) (noting 
that the compelling need arising out of the criminal process merited a 
breach of executive privilege, and observing that the same need was not 
present in a congressional inquiry).
    \42\ Statement of Antonin Scalia, Hearings on S. 2170 before the 
Subcomm. on Intergovernmental Relations, Senate Comm. on Govt 
Operations, 94th Cong., 1st Sess. 116 (Oct. 23, 1975).
---------------------------------------------------------------------------
    The United States Court of Appeals for the District of 
Columbia Circuit has long held that presidential communications 
are ``presumptively privileged.'' 43 Accordingly, a 
congressional committee seeking to inquire into presidential 
communications bears a heavy burden to demonstrate that it has 
a proper basis to do so. That burden can be met ``only by a 
strong showing of need by another institution of government--a 
showing that the responsibilities of that institution cannot 
responsibly be fulfilled without access to records of the 
President's deliberations . . . .'' 44 Moreover, the 
Committee must prove that ``the subpoenaed evidence is 
demonstrably critical to the responsible fulfillment of the 
Committee's functions.'' 45
    \43\ Nixon v. Sirica, 487 F.2d 700, 705 (D.C. Cir. 1973).
    \44\ Senate Select Committee on Presidential Campaign Activities v. 
Nixon, 498 F.2d 725 (D.C. Cir. 1974).
    \45\ Id. at 731.
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    Where, as here, the competing constitutional interests of 
the legislative and executive branches are implicated, the 
courts have balanced alternative interests and proposals to 
determine ``which would better reconcile the competing 
constitutional interests.'' 46 In this regard, the United 
States Court of Appeals for the District of Columbia Circuit 
has stated that ``each branch should take cognizance of an 
implicit constitutional mandate to seek optimal accommodation 
through a realistic evaluation of the needs of the conflicting 
branches in the particular fact situation.'' 47 As former 
Attorney General William French Smith noted:
    \46\ United States v. American Telephone and Telegraph Co. (ATT I), 
551 F.2d 384, 394 (D.C. Cir. 1976).
    \47\ United States v. American Telephone and Telegraph Co. (ATT 
II), 567 F.2d 121, 127 (D.C. Cir. 1977).
---------------------------------------------------------------------------
          The accommodation required is not simply an exchange 
        of concessions or a test of political strength. It is 
        an obligation of each branch to make a principled 
        effort to acknowledge, and if possible to meet, the 
        legitimate needs of the other branch.48
    \48\ Opinion of the Attorney General for the President, ``Assertion 
of Executive Privilege in Response to a Congressional Subpoena'', 5 Op. 
O.L.C. 27, 31 (1981) (Smith Opinion).

    Thus, even if the Special Committee had demonstrated a 
compelling need for the privileged information, the Senate 
still should balance that need for the information against the 
competing interests identified by Williams & Connolly and the 
White House. Such a balance weighs heavily against the course 
pursued by the Special Committee.
    Although the Kennedy notes may be relevant to the 
Committee's inquiry, the Committee's need for the notes is not 
sufficiently compelling to justify a federal court action to 
enforce the subpoena. As noted previously, the White House has 
offered to make Kennedy's notes available to the Committee if 
certain conditions are met. The Committee has not explained why 
accommodating those conditions would interfere with the 
Committee's investigation. Therefore, the Committee has not 
demonstrated the requisite compelling need to invade privileged 
presidential communications.

                            VII. Conclusion

    For more than a century, the Senate has recognized and 
respected the attorney-client relationship. Senate action that 
needlessly forces a waiver of the privilege would deprive the 
President and Mrs. Clinton of the right to communicate in 
confidence with their counsel--a basic right afforded to all 
Americans. Because the information the Committee seeks is 
available to it without forcing a constitutional conflict, the 
Senate should not move forward to seek enforcement of the 
Committee's subpoena to William Kennedy.

                                   Paul S. Sarbanes.
                                   Christopher J. Dodd.
                                   John F. Kerry.
                                   Richard H. Bryan.
                                   Barbara Boxer.
                                   Carol Moseley-Braun.
                                   Patty Murray.
                                   Paul Simon.
                                   <GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
                                   
                 ADDITIONAL VIEWS OF SENATOR JOHN KERRY

    In Committee, I voted against this Resolution. But that 
opposition does not suggest that I believe the notes of William 
Kennedy should not or could not be made available to the 
Committee in order to complete its investigation of the failure 
of Madison Guaranty.
    For the past few weeks, there have been bona fide offers on 
the table that could have been pursued in order to obtain these 
notes. I believe that this confrontation with the White House 
is unnecessary and could have been avoided. Legal scholars tell 
me that the issue of attorney-client privilege in this regard 
is of such precedent-setting importance that if disputes 
surrounding privilege cannot be resolved between the parties 
involved, they deserve a judicial hearing. The ramifications of 
this Resolution extend far beyond the purview of the Senate 
Banking Committee or the entire United States Senate. They 
extend to the office of the presidency and to all public 
officeholders who are represented in myriad legal matters by 
private counsel as well as official government attorneys.
    My opposition to the Resolution, however, should not 
suggest that I am filled with confidence by every witness who 
has appeared here. My opposition should not be misconstrued to 
suggest that I believe the White House has facilitated an 
efficient flow of information to this Committee at all times.
    Therefore, while my vote is no on the confrontational 
procedure the Majority is pursuing, I am very eager to obtain 
all relevant information to this investigation, including the 
notes of William Kennedy. That is our common duty and the 
responsibility. But it is not our duty to engage in 
confrontational partisan politics--and I believe the proper 
course is to reject this Resolution.

                                                        John Kerry.