Barring an unlikely last-minute agreement by President Clinton to yield the information, Sen. Alfonse D’Amato, R-N.Y., said Wednesday it’s a “reasonable probability” the Senate Whitewater Committee will vote this afternoon to enforce a subpoena for crucial Whitewater notes.
If the Republican-controlled Senate then votes to back the committee, the matter would move to U.S. District Court, and possibly even a constitutional showdown before the Supreme Court, D’Amato said.
“The White House is creating a crisis in confidence” among the American people, D’Amato charged. “The American people do have a right to know.”
In March 1994, Clinton had said it would be “hard for me to imagine a circumstance” in which it would be “appropriate” to invoke attorney-client or executive privilege to prevent certain Whitewater matters from becoming public.
But late Tuesday the president claimed attorney-client privilege and suggested executive privilege in refusing to comply with the committee’s subpoena for the notes former White House Associate Counsel William H. Kennedy III took of a two-hour Whitewater meeting Nov. 5, 1993.
White House spokesman Mike McCurry renewed Clinton’s pledge to cooperate with investigators Wednesday. But he said the president has a right to keep his conversations with his attorneys as secret as those with a doctor or minister. If Clinton complied in this case, McCurry said, “adversaries to the president would then obviously demand more.”
Meanwhile, the panel revealed that in addition to the notes, Clinton has refused to turn over four other subpoenaed Whitewater-related documents.
They include a chronology drafted by David Kendall, the Clintons’ personal attorney; a Jan. 5, 1994, letter to the president from Jim Hamilton, who represents the family of late Deputy White House Counsel Vincent Foster; a Dec. 20, 1993, New York Times article annotated by the president; and undated notes of White House lawyer Joel Klein.
The main issue is whether Clinton will allow Kennedy - a former partner of Hillary Rodham Clinton at the Rose Law Firm in Little Rock, Ark. - to tell the committee about the 1993 meeting in Kendall’s Washington office. Others attending were Deputy White House Counsel Bruce Lindsey, White House Counsel Bernard Nussbaum, Associate White House Counsel Neil Eggleston and private Clinton attorneys James Lyons and Stephen Engstrom.
Republicans led by Sen. Bob Bennett, R-Utah, said Kennedy was a government lawyer paid by the taxpayers at the time of the meeting and not a personal lawyer to the president.
But White House Special Associate Counsel Mark Fabiani said the presence of the president’s governmental lawyers at the meeting with his private lawyers “does not destroy his attorney-client privilege because the president also has the right to have confidential communication with his government lawyers.”
While stopping just short of invoking “executive” or “presidential” privilege outright, the White House submitted a brief to the panel citing cases involving President Nixon and contending that the privilege “would” protect notes of the Nov. 5 meeting because the lawyers were providing the president legal advice.