White House must surrender notes

WASHINGTON — The Supreme Court gave Whitewater prosecutors a victory Monday in their investigation of possible obstruction of justice, forcing White House attorneys to surrender notes of conversations with Hillary Rodham Clinton.

The White House had argued the lawyers’ notes were protected by attorney-client privilege, but the justices, without comment, refused to hear the appeal. An appellate court in St. Louis had ruled that such privilege does not protect government lawyers’ notes when they are subpoenaed by a federal grand jury.

An administration official said the White House was delivering the notes to Whitewater prosecutor Kenneth Starr immediately, ending a battle that was waged in private for months before reaching the high court this spring.

There have been growing signs of prosecutors’ intense focus on the conduct of the first lady.

Monday’s development also could open the door for prosecutors to question White House attorneys in detail about their discussions with the first lady and her private attorney, David Kendall, several lawyers said.

“We’re very pleased with the Supreme Court’s action,” Whitewater prosecutor Kenneth Starr said outside his Little Rock, Ark., office.

The White House expressed dismay, but said it would comply.

“We continue to believe that government lawyers must be allowed to have confidential discussions with their clients if they are to be able to provide candid and effective legal advice, and we regret that the court has decided not to resolve this important issue,” presidential counsel Charles Ruff said.

Court documents made public recently assert that prosecutors have gathered “extensive evidence” of possible obstruction, that Mrs. Clinton’s testimony on several issues has changed and that she is among those who could be indicted.

The White House and Mrs. Clinton’s defenders have dismissed the recent developments as politically motivated — Starr is a Republican — and have steadfastly maintained the first lady did nothing wrong.

Prosecutors are investigating whether Mrs. Clinton was the hidden hand that barred Justice Department officials from searching the office of deputy White House counsel Vincent Foster after his July 20, 1993, death.

The prosecutors are also trying to determine why Mrs. Clinton’s law firm billing records, bearing Foster’s handwriting, mysteriously appeared last year after dropping from sight at the conclusion of the 1992 presidential campaign.

The billing records detail Mrs. Clinton’s work as a private attorney in the 1980s for the failed Arkansas savings and loan at the center of the investigation. They were subpoenaed in 1993, but the White House said they were missing. Then Mrs. Clinton’s Whitewater attorney abruptly surrendered them in January 1996, and a longtime assistant to the first lady said she found them on a table in the presidential living quarters.

At issue in the Supreme Court case were the notes of Whitewater conversations involving Mrs. Clinton and White House attorneys Jane Sherburne and Miriam Nemetz. In sealed court filings, the White House had contested the subpoena on grounds that the notes were protected by Mrs. Clinton’s right to have confidential conversations with attorneys who advise her.

Nemetz’s notes are of a July 11, 1995, discussion regarding Mrs. Clinton’s activities after Foster’s death. Sherburne’s notes were taken on Jan. 26, 1996, as lawyers talked with Mrs. Clinton during breaks in the first lady’s historic appearance before a grand jury and later that day at the White House.

“This is an evidentiary windfall for Ken Starr,” said Joseph diGenova, a federal prosecutor in the Reagan and Bush administrations. “The prosecutors are going to be able to bring all of the White House lawyers into the grand jury and there’s nothing the White House can do about it.”

University of Michigan law professor Richard Friedman said the White House might try to fight detailed grand jury questioning of White House lawyers but “this opens the door for prosecutors to say, `Look, this was just not a privileged relationship and we can bust into these conversations.”‘

President Clinton’s closest confidant, Bruce Lindsey, invoked attorney-client privilege in refusing to testify to Senate investigators about the content of five to 10 meetings he had with the Clintons’ private Whitewater lawyer.