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104th Congress 1st SENATE Report
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
SPECIAL COMMITTEE TO INVESTIGATE
WHITEWATER DEVELOPMENT CORPORATION
AND RELATED MATTERS
administered by the
BANKING, HOUSING, AND URBAN AFFAIRS
UNITED STATES SENATE
S. Res. 199
MINORITY AND ADDITIONAL VIEWS
December 19, 1995.--Ordered to be printed
COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS
ALFONSE M. D'AMATO, New York,
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
Philip E. Bechtel, Deputy Staff
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,
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
Philip E. Bechtel, Deputy Staff
Steven B. Harris, Democratic Staff
Director and Chief Counsel
C O N T E N T S
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
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
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
1st Session 104-191
REFUSAL OF WILLIAM H. KENNEDY, III, TO PRODUCE NOTES SUBPOENAED BY THE
SPECIAL COMMITTEE TO INVESTIGATE WHITEWATER DEVELOPMENT CORPORATION AND
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]
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.
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
(A) the procedure followed by the Committee in
issuing its subpoena;
(B) the extent to which Mr. Kennedy has complied with
(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.
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,
(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
(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
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
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
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.
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
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.
c. the relevance of mr. kennedy's notes to the committee's
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
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
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.
A. The Procedure Followed by the Committee In Issuing the Subpoena to
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
\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.
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,
\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
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
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
(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
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
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
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
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,
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
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
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
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.
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
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
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-
c. The presence of Bruce Lindsey at the November 5 meeting
precludes the assertion of the attorney-client
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.
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.
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
\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
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
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
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:
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
Special Committee to Investigate Whitewater Development Corporation and
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
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
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
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
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
Other legal experts agree with Professor Hazard's analysis.
New York University law school professor Stephen Gillers stated
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
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
\3\ R. Marcus and S. Schmidt, ``Legal Experts Uncertain on
Prospects of Clinton Privilege Claim,'' Washington Post, Dec. 14, 1995
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
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
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
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
\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
\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
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.
\18\ See Holland v. Island Creek Corp., 885 F. Supp. 4, 7 (D.D.C.
\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.
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
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
\24\ Westinghouse Electric Corp. v. Republic of the Philippines,
951 F.2d 1414, 1427 n. 14 (3rd Cir. 1991) (hereinafter Westinghouse).
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).
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
\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
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
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
\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
\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
\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
2. the clintons' assertion of the attorney-client privilege deserves
the same respect that the Committee has afforded to witnesses in this
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
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.
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.