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White House Notes Are Given to Starr

By Susan Schmidt
Washington Post Staff Writer
Tuesday, June 24 1997; Page A01

The Supreme Court yesterday declined to hear a Clinton administration appeal of a lower court ruling forcing White House lawyers to give Whitewater independent counsel Kenneth W. Starr notes they took in discussions with Hillary Rodham Clinton.

The disputed notes, taken during conversations related to Hillary Clinton's questioning by Starr's investigators and by a Washington grand jury, were turned over to Starr's office last night, a White House official said.

The president and first lady had fought a grand jury subpoena for the notes, issued at Starr's request last year, arguing that the conversations were protected by attorney-client privilege. Although the White House won an initial court battle, the Clintons lost to Starr in the 8th U.S. Circuit Court of Appeals and again yesterday when the Supreme Court refused, without comment, to consider the case. The refusal was the second Supreme Court blow to White House efforts to shield Clinton in legal proceedings. Less than a month ago, the court ruled that Paula Corbin Jones may pursue her sexual harassment lawsuit against the president while he is in office.

White House counsel Charles F.C. Ruff said in a statement yesterday: "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. We regret that the court has decided not to resolve this important issue."

The White House had no official comment beyond Ruff's terse statement. Privately several Clinton aides expressed astonishment at the court's action. There had been widespread expectation in the White House that the justices would at least hear the case.

White House lawyers, some officials said, were reviewing with horror the potentially wide-ranging implications of yesterday's action. It is at least conceivable that notes of all kinds of discussions the Clintons had with government lawyers about Whitewater could be subpoenaed. Starr, one aide theorized, might assert that he has a right to depose former White House counsel Bernard Nussbaum.

"We're very much in uncharted territory here," said one senior administration official.

Starr and congressional investigators have been interested in a series of Whitewater damage control meetings at the White House in 1993 and 1994. Participants at various points included the Clintons, their personal attorney, David E. Kendall, White House lawyer Bruce Lindsey and others.

The two sets of notes covered by yesterday's court action were made by lawyers from the White House counsel's office – one during a 1995 meeting preceding an interview with Starr's lawyers, the other on the day of Hillary Clinton's January 1996 grand jury appearance.

In their arguments to the court, Starr's office maintained that government lawyers cannot be enlisted in private defense work, and that shielding their notes from a federal grand jury would pit one branch of government against another.

Administration lawyers said if the White House were forced to turn over the notes, the long-held principle of attorney-client privilege would be damaged, as would the ability of all federal agencies to obtain sound legal advice. A group of former White House counsels from both political parties filed a "friend of the court" brief this month urging that the notes of the conversations involving Hillary Clinton be kept confidential.

Had the court taken the case, with arguments put off until its fall term, it would have further delayed the long-running inquiry that began as an investigation of a 1978 investment the Clintons made in the Arkansas land development called Whitewater.

The first set of notes was taken by former associate White House counsel Miriam Nemetz on July 11, 1995, at a meeting attended by Hillary Clinton, special counsel Jane Sherburne and Kendall. The purpose of the meeting, according to court papers, was to discuss Hillary Clinton's actions in the days following the July 1993 death of deputy White House counsel Vincent W. Foster Jr. – her former partner at the Rose Law Firm in Little Rock. Later that month, lawyers from Starr's office interviewed her about the search of Foster's office after his death.

The second set of notes was taken by Sherburne during breaks in and immediately after Hillary Clinton's Jan. 26, 1996, testimony before a Washington grand jury looking into the discovery of long-missing Rose Law Firm billing records in the residence of the White House. Those present when the Jan. 26 notes were taken also included Kendall, his partner Nicole K. Seligman and then-White House counsel Jack Quinn.

Starr is likely to renew his earlier effort to see other Whitewater-related notes taken in the presence of Hillary Clinton and White House lawyers, according to lawyers close to the investigation.

Starr's subpoena originally sought any such notes that related to the Clintons' former business partner in the Whitewater venture, James B. McDougal, McDougal's now defunct savings and loan, Madison Guaranty Savings & Loan, and David Hale, the businessman and former municipal judge who accused Clinton of urging him to make a fraudulent loan of $300,000 in federally backed funds to McDougal's wife, Susan.

The subpoena also sought notes for four dates in July 1995, just days or weeks before the billing records were found in the book room of the White House residence by a correspondence aide, who ultimately alerted lawyers.

Staff writer John F. Harris contributed to this report.

Copyright 1997 The Washington Post Company

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