(Note: In the following communication to the Senate's Whitewater Committee, Williams & Connolly, attorneys for President and Mrs. Clinton, assert attorney-client privilege regarding the
notes of a meeting held in the Williams & Connolly offices regarding "Whitewater matters" in November 1993. Clinton's counsel also asserts a common interest and work product privilege.
There seems to be reluctance on Mr. Clinton's counsel's part to assert privilege:
"For a President, an assertion of privilege is extremely difficult . Such a claim, no matter how legitimate,
inevitably leads partisan opponents to cry "stonewall." That is a predictable and irresistibly convenient political ploy. To date, the Special Committee, like the Independent Counsel, the RTC, and the House of Representatives, has received extraordinary cooperation from the President in its investigative efforts. But now, confronted with an increasingly popular President and public disinterest in Whitewater, the Special Committee majority is pushing its demands for access unreasonably into the privileged It relationship with personal counsel.
In light of this effort, the easiest course would be simply to disclose one more document, to join the tens of
thousands of confidential White House and personal documents already made available to the Senate. But this time the demand of the Special Committee majority, and its claim of "stonewalling are deeply unfair and, under the circumstances, require that a line be drawn to protect an important legal right: the President and Mrs. Clinton's privilege to consult confidentially with their private counsel, and that counsel's need to work with White House lawyers in order .to provide informed advice. It is the appropriate line to draw for at least two reasons: (1) because the right to consult in confidence with one's own lawyer is a right every citizen enjoys and respects, and (2) because the information the committee says it needs is otherwise available to it.')
SUBMISSION OF WILLIAMS & CONNOLLY
TO THE SPECIAL SENATE COMMITTEE REGARDING
WHITEWATER AND RELATED MATTERS
I. INTRODUCTION.
On December 8, 1995, the Special Committee to Investigate
Whitewater Development Corporation and Related Matters
served a subpoena on William H. Kennedy, III, former
Assistant White House Counsel, for documents in his
possession relating to a meeting he attended on November 5,
1993, at the law offices of Williams & Connolly, personal
counsel to the President and Mrs. Clinton on so-called
"Whitewater" matters. Mr. Kennedy has respectfully declined
to comply with this subpoena on privilege grounds. In the
transmittal letter accompanying the subpoena, the Chairman
invited Mr. Kennedy "to submit . . . a legal memorandum
which sets forth the basis for your refusal to comply with
the subpoena." Because Mr. Kennedy's response to the
subpoena is pursuant to the instructions of this law firm
and of } the White House Counsel's Office, both entities
are submitting separate memoranda stating the reasons why
privilege applies to the documents sought by this subpoena.
Two points cannot be overemphasized: first, the issue here
is not the subpoenaed notes. The issue is the
confidentially of the President and Mrs. Clinton's
relationship with their personal lawyer. If they make the
notes public, partisan investigators will next claim that
they have waived the confidentiality of that entire
relationship. That risk alone creates the need to maintain
the confidentiality of the notes. Second, a President must
be able to receive confidential legal advice about any
personal matter including personal matters that might
affect his public duties. The President and the Presidency,
although distinct conceptually, are at times inseparable
practically. On matters of common interest, the lawyers for
each -- White House counsel and personal counsel -- must
be able to talk frankly in confidence, and delineate areas
of responsibility, just as the President must be able to
talk in confidence to both. Without such exchanges, neither
lawyer could obtain the full picture necessary to offer
sound advice, and neither could be effective in his or her
role. The President could not receive the legal advice he
needs to conduct his public and personal business.
Moreover, the last decade has, for better or for worse,
been a time when public policy differences have been
improperly referred to the criminal process, rather than
resolved by the give and take of political debate, when
motives are impugned and the specter of wrongdoing is
raised at every turn, and when bareknuckle tactics rather
than civility are the order of the day./1/ Today, when
politics is too often practiced as a blood sport, a
President, like any other elected official and like any
citizen, deserves the full right to legal counsel, for he
may be beset by overzealous or partisan investigators whose
motive is not simply to uncover the truth but rather to do
him political damage.
These simple points alone compel the decision to resist the
Special Committee's subpoena.
* * *
For the reasons set forth in this memorandum, the November
5, 1993, meeting is plainly protected by both the
attorney-client privilege and the attorney work-product
doctrine This was a meeting of present and past personal
counsel for the President and Mrs. Clinton and of attorneys
doing legal work in the White House. The purpose of the
meeting was to brief new personal counsel and members of
the White House Counsel's Office on "Whitewater" matters
and to agree upon an appropriate division of responsibility
for Whitewater" legal duties between personal and White
House counsel. Indeed, as the following legal analysis
demonstrates, the meeting is so clearly protected in so
many different ways that the Special Committee's attempt to
invade the privileged relationship is puzzling,
particularly in view of the numerous permissible ways in
which the Special Committee may gather relevant information
concerning the meeting, which the Special Committee's
counsel have not even attempted to date.
The President and Mrs. Clinton have afforded comprehensive
and unprecedented cooperation in every investigation into
"Whitewater" matters. They have voluntarily produced tens
of thousands of pages of documents to this Committee, the
RTC, and the Independent Counsel. They have each testified
three times under oath for the Independent Counsel, they
have answered voluminous interrogatories for the RTC, and
Mrs. Clinton has provided information under oath to both
the FDIC and this Committee.
For this Committee, however, it appears that no degree of
cooperation is sufficient. As the hearings drag beyond
their thirtieth day and face low ratings and flagging
public interest, the Committee majority is plainly
attempting to manufacture a controversy so that it can
allege (finally) a failure of cooperation by the Clintons.
It appears that the majority has made a conscious and
concerted decision to spark this battle over the exercise
of a privilege which, however well established as a matter
of law, will provide a specious occasion to cry "Coverup!"
Whatever partisan and political advantage there may be to
this grandstanding, as a matter of law this unprecedented
attempt is wholly devoid of merit.
II. BACKGROUND TO THE NOVEMBER 5, 1993 MEETING.
Starting on October 31, 1993, and in the days immediately
following, there was a torrent of press discussion of the
many matters now known collectively as "Whitewater." A
review of these press accounts establishes that, by the
date of the meeting, there had been unprecedented public
disclosure of the on-going federal investigations. It was
clear by November 5 that there would be an appropriate role
for both personal and White House counsel.
On October 31, 1993, The Washington Post reported that 4
the Resolution Trust Corporation had 'asked federal
prosecutors in Little Rock to open a criminal investigation
into whether a failed Arkansas savings and loan [Madison
Guaranty] used depositors' funds during the mid-80s to
benefit local politicians, including a reelection campaign
of then-governor Bill Clinton." Susan Schmidt, U.S. Is
Asked to Probe Failed Arkansas S&L, The Washington Post, at
Al. Citing "government sources familiar with the probe,"
the Post article presented a detailed picture of the RTC
referrals. Id. 2/ It reported that the RTC had referred
About 10 matters arising from transactions at" Madison to
United States Attorney Paula Casey approximately three
weeks earlier, and that the referrals included "questions
about whether a series of checks written on Madison
accounts ended up in Clinton's campaign fund." Id. 3/
The Washington Post story was only the first of a series of
articles in the Post and other newspapers disclosing in an
extraordinary way reams of details about on-going federal
investigative efforts. On November 1, 1993, The Wall Street
Journal confirmed the existence of an investigation into
Madison Guaranty and publicized a second parallel federal
investigation by federal prosecutors and the Small Business
Administration regarding a former judge, David Hale, who
was involved in the collapse of Capital Management
Services, Inc., an SBA-funded small business investment
company (SBIC). Bruce Ingersoll and Paul Barrett, U.S.
Investigating S&L Chiefs '85 Check to Clinton. SBA-Backed
Loan to Friend, The Wall Street Journal, at Ad. The Journal
reported an investigation of alleged defrauding of the SBA
by Hale's company, which it said had lent money to a firm
owned by Mr. McDougal's wife, Susan. The article also
stated that Mr. Hale had attempted to "stave off his
indictments by providing investigators with information
about Madison Guaranty's Possible misuse of funds for
political purposes." Id. News of the federal investigations
also carried by newspapers abroad. Martin Walker, Clintons'
Associate to be Investigated, The Guardian, at 11.
On November 2, 1993, both The Washington Post and The New
York Times carried stories providing additional facts about
the federal investigations. The Post reported that the FBI
had raided the offices of Mr. Hales firm the previous
summer and had "seized documents that included records of
a $300,000 loan to a public relations company headed by
Susan McDougal, a partner in Whitewater." Michael Isikoff
and Howard Schneider, Clintons' Former Real Estate Firm
Probed, The Washington Post, at A1. The New York Times
described an alleged close business and professional
relationship between then-Governor Clinton and Mr. McDougal
and reported that RTC investigators were interested in a
potential link between campaign contributions made by
Madison Guaranty to then-Governor Clinton and efforts by
Madison to get state bank regulators to approve a stock
plan. Jeff Gerth and Stephen Engelberg, U.S. Investigating
Clinton's Links to Arkansas S.& L., The New York Times, at
A20. 4/
The stories continued the next day. The Washington Post ran
an article on November 3, 1993, detailing what it described
as a possible conflict of interest in the Rose Law Firm's
representation of the FDIC, which had taken over Madison
Guaranty, an institution which, the Post reported, the law
firm had previously represented in 1985 when the S & L
sought state regulatory approval for a plan to raise new
capital. The representation was in a lawsuit against the
S&L's former accounting firm. Susan Schmidt, Regulators Say
They Were Unaware of Clinton Law Firm's S&L Ties, The
Washington Post, at A4./5 , The Arkansas Democrat Gazette
reported that a July 1993 FBI raid on Mr. Hale's office
disclosed documents detailing a $300,000 loan to Susan
McDougal, some of the proceeds of which "were used to
finance a large purchase of rural property from the
International Paper Co. by Whitewater in October 1986."
Noel Oman, "Old Story " Clinton Says of Links to McDougal,
Arkansas Democrat Gazette, at 11A. The article additionally
recounted that Hale was indicted that September on charges
that he and two colleagues "defrauded the SEA by illegally
funneling $800,000 in and out of Capital Management to
secure a $900,000 SBA loan." Richard Keil, Clintons Clear
of S&L Inquiry White House Insists, Arkansas Democrat
Gazette, at 13A.
Additional stories were published November 4, 1993, the day
before the meeting among counsel at Williams & Connolly.
The Washington Post reported in detail on federal
investigations into Arkansas Governor Jim Guy Tucker's
relationships with Madison arc Capital Management Services.
Howard Schneider, Governor Tucker's Finances Become Probe
Focus, The Washington Post, at A3. The Washington Times
reported that the federal inquiry into Madison a loans
included an inquiry into an alleged "$35,000 loan to Mr.
Clinton to help settle 1984 campaign debts." Jerry Seper,
What Were the Clinton Stakes in Land Scheme?, The
Washington Times, at ' Al. It further stated that federal
investigators were looking into what it described as "$2000
a month in legal fees from Mr. J McDougal [that Mrs.
Clinton received: to represent Madison Guaranty." Id. at
A20.6/
Finally, on November 5, 1993, the day of the meeting, The
Washington Times published another lengthy and detailed
account of the "federal fraud investigation" of Mr.
McDougal. Jerry Seper, Probe of S&L Chief Touches on
Hillary's Legal Fee, The Washington Times, at Al. The
article stated that investigators were looking into a
$30,000 payment made to Mrs. Clinton for legal work over a
15-month period and included the allegation that Mr.
Clinton and Mr. McDougal Impersonally agreed to the
payments" and that Mr. Clinton Unpicked up the checks." Id.
The article further claimed that "the probe also is aimed
at determining if the monthly retainer was paid to Mrs.
Clinton through a secret bank account." Id.2
In short, by the day of the meeting at Williams & Connolly,
the details of the RTC referral and investigations by the
U.S. Attorney and the SBA had been extensively publicized,
and many of the allegations, facts, and issues surrounding
the broadly defined White water matter were well known. The
torrent of unusually detailed reporting about the RTC
referral and the federal investigations in the week leading
up to the November 5th meetings was vastly more specific
than any information conveyed by the RTC to the Treasury
Department and the White House in the September and October
1993 "Treasury/White House contacts" meetings, which the
Senate Banking Committee explored in the summer of 1994.
See Appendix A. Given the thorough airing of the RTC
referral and the federal investigations in the press
summarized above, whatever limited confidential information
concerning the RTC referral may have been given to Treasury
or the White House had been published in the press by the
time of the Williams & Connolly meeting
III. THE MEETING AND WHO ATTENDED IT.
The November 5 meeting occurred after the avalanche of
publicity described in the previous section, and it had a
number of purposes: 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 Company 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. All of
these purposes served the larger purpose of providing legal
advice to the President on the conduct of his public and
private business.
The meeting was set up by David E. Kendall with Bernard
Nussbaum, White House Counsel. It was held at Kendall's law
firm, lasted more than two hours, and was limited to pass
and present personal lawyers for the President and Mrs.
Clinton and lawyers in the White House Counsel's Office
doing legal work on the emerging Whitewater matters.
Communications at the meeting were held in strict
confidence. Seven lawyers attended. Mr. Kendall, a partner
at the Washington, D.C., law firm of Williams & Connolly,
had been retained to represent the Clintons with respect to
Whitewater matters the day before, on November 4, 1993.
Stephen Engstrom, a partner at the Little Rock law firm of
Wilson, Engstrom, Corum, Dudley & Coulter, had traveled to
Washington, D.C., to attend the meeting. He had been
retained to serve as local counsel for the Clintons a few
days prior to the meeting. 9/
Also present were three attorneys from the White House
Counsel's Office: White House Counsel Bernard Nussbaum,
Associate White House Counsel William H. Kennedy, III, and
Associate White House Counsel Neil Eggleston. Mr. Kennedy
had also represented the Clintons in the 1990-1991 period,
when he undertook an investigation of the status of the
Clintons' investment in Whitewater Development Company.
This representation had continued in 1992, when Mr. Kennedy
had advised the Clinton Campaign about the Whitewater
investment. He then represented the President in his
official capacity when he joined the White House Counsel's
Office in 1993.
James M. Lyons, Esq., a partner in the Denver, Colorado,
law firm of Rothgerber, Appel, Powers & Johnson, had also
traveled to Washington, D.C., to attend the meeting. During
the 1992 Presidential campaign, he had served as personal
counsel to the Clintons with respect to a number of
different matters, and had undertaken to do an extensive
review of the Whitewater investment, with the Denver
forensic accounting firm of Batten, McCarthy & Associates,
Inc. Mr. Lyons continued to represent the Clintons
personally in November 1993.
Finally, Bruce Lindsey, Esq., a former law partner of
President Clinton's, a former counsel both to then-Governor
Clinton personally and his 1990 and 1992 political
campaigns, and White House personnel director in November
1993, attended the meeting. Although not part of the White
House Counsel's Office, be Mr. Lindsey also had done legal
work for the Office of the President analyzing various
"Whitewater" issues as they emerged in the fall of 1993 and
working through counsel in Arkansas to research state law
legal issues. He continued in that role after the November
5 meeting.
Because the purpose of the meeting was to learn the facts,
develop legal analyses, and apportion responsibilities in
order to enable both personal and White House counsel to
provide competent, appropriate, and effective legal advice
and services, the meeting was plainly privileged.
IV. THE DISCUSSION THAT TOOK PLACE AMONG THE ATTORNEYS
PRESENT AT TEE NOVEMBER 5, 1993 MEETING, AND ALL DOCUMENTS
REFLECTING THAT DISCUSSION, ARE PROTECTED BY THE ATTORNEY
CLIENT PRIVILEGE, THE COMMON-INTEREST PRIVILEGE, AND THE
WORK-PRODUCT DOCTRINE.
A. The Meeting Was Protected by the Attorney-Client
Privilege .
The attorney-client privilege, which originated in Roman
and canon law, "is the oldest of the privileges for
confidential communications known to the common law."
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)
(citing 8 J. Wigmore, Evidence 2290 (McNaughton rev.
1961)). The purpose of the privilege is "to encourage full
and frank communications between attorneys and their
clients," and Bathe privilege exists 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." Upjohn, 449
U.S. at 389-91. 10/
The November 5 meeting at Williams & Connolly falls
squarely within this privilege. Seven lawyers, all personal
counsel for President and Mrs. Clinton or lawyers in the
White House, attended the meeting. Each was present in his
capacity as a lawyer, and the President and Mrs. Clinton
understood themselves to have a privileged relationship
with each lawyer. The meeting was held for the purpose of
sharing information as necessary and appropriate to provide
legal advice, analyzing the information, and dividing
responsibility among the lawyers for handling
Whitewater-related matters on behalf of the Clintons. This
lawyers' meeting was held with the expectation of
confidentiality, and it is privileged.
1. The Attorney-Client Privilege.
Certain basic and indisputable rules about the
attorney-client privilege establish this point. First, the
attorney-client privilege@ protects confidential
communications between an attorney and his or her client
"made for the purpose of furnishing or obtaining
professional legal advice and assistance." In re LTV
