The Supreme Court dealt a major setback to President Clinton in the Whitewater investigation on Monday by refusing to review a subpoena that orders White House lawyers to surrender notes they had taken of conversations with first lady Hillary Rodham Clinton.
After the justices left undisturbed an appeals court’s ruling that the notes are not protected by the lawyer-client privilege, as Hillary Clinton and her lawyers had contended, the White House turned over the notes to the Whitewater independent counsel.
The notes cover two discussions Hillary Clinton had with White House lawyers: once during her grand jury appearance last year and an earlier time when she discussed some of the circumstances surrounding the suicide in 1993 of Vincent Foster Jr., her former law partner and the deputy White House counsel.
Although it is not known whether the notes contain anything of use to prosecutors, the prosecutors have said they sought the material because it could shed light on the investigation, which is examining possible perjury and obstruction of justice.
Hillary Clinton was called to testify before a federal grand jury here after copies of long-sought billing records from her former law firm mysteriously appeared in the residence of the White House and were turned over to investigators two years after they first had been subpoenaed by the Whitewater independent counsel. The records provide ambiguous clues about the nature of the work she performed for a savings association that was later found to be rife with corruption.
White House advisers said that they were not concerned about the contents of the notes and were said to be discussing whether, in light of Monday’s decision, they should make them public. Nonetheless, the decision by the appeals court that was left undisturbed by Monday’s action has far-reaching consequences for both the investigation and the way in which government officials consult with government lawyers. It also could shave months off the investigation by curtailing a court fight that would have spilled into 1998.
Investigators are almost certain to use the legal precedent established two months ago by the 8th U.S. Circuit Court of Appeals, in St. Louis, to seek other information in the hands of White House lawyers that could bear on the sprawling examination of the political and personal finances of the Clintons. Over the years, the White House has cited lawyer-client privilege to withhold a variety of material sought by federal and congressional investigators.
President Clinton on Monday ignored shouted questions from reporters about the court’s decision, but other White House officials expressed dismay.
“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,” said the White House counsel Charles F.C. Ruff.
Lawyers at the White House and the Justice Department said the court’s refusal to hear the appeal leaves a precedent on the books that will chill relations between government officials and their lawyers, knowing that their discussions may not be protected from disclosure to a grand jury.
In the briefs that they had filed with the Supreme Court, lawyers representing the White House and the Justice Department had urged the justices to reverse the appeals decision because it had substantially eroded the ability of government officials to obtain advice from government lawyers. The Whitewater independent counsel, Kenneth Starr, replied that the case would not adversely affect government lawyers, who are obligated to report evidence of criminal wrongdoing.
The decision was the second big Supreme Court defeat for the White House in recent days. Four weeks ago the justices unanimously refused to delay a sexual harassment lawsuit filed against President Clinton by Paula Jones.
Though Monday’s ruling removes what Starr has characterized as “an impediment” to his investigation, it remains unknown how much longer the inquiry will last or whether Starr will seek any new charges. In April, Starr told a federal judge that he needed to extend the term of a grand jury in Arkansas because his inquiry had uncovered “extensive evidence” of possible obstruction of justice. And one of Starr’s deputies recently told a federal court that Hillary Clinton is among those who could be indicted.
Starr announced on Thursday that he had decided to hire four more prosecutors, including the former heads of the public corruption units of the U.S. attorney’s offices in Los Angeles and Miami.
Hiring new Whitewater prosecutors, who will be working in Washington, suggests that Starr may be considering new prosecutions. The Whitewater independent counsel’s office is scheduled to conduct only one prosecution in the next few months, a second trial of former Gov. Jim Guy Tucker of Arkansas and two associates on charges of fraud.