S. Rept. 104-191 - REFUSAL OF WILLIAM H. KENNEDY, III, TO PRODUCE NOTES SUBPOENAED BY THE SPECIAL COMMITTEE TO INVESTIGATE WHITEWATER DEVELOPMENT CORPORATION AND RELATED MATTERS104th Congress (1995-1996)
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[Senate Report 104-191] [From the U.S. Government Publishing 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 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). --------------------------------------------------------------------------- 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). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- 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. 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.