Lawyers for the White House Monday asked the Supreme Court to intervene to protect notes attorneys took in conversations with first lady Hillary Rodham Clinton relating to a failed Arkansas real estate venture now under investigation by independent counsel Kenneth W. Starr.
If the notes must be surrendered, White House attorneys say, it would violate historic notions of attorney-client privilege and “substantially impair” the ability of all federal agencies to obtain sound legal advice, particularly in the face of independent counsel investigations.
The White House appealed an opinion by the 8th U.S. Circuit Court of Appeals last month ordering the administration to turn over the notes relating to the Clintons’ involvement in the Whitewater land deal. The divided three-judge panel said the usual attorney-client privilege did not extend to government lawyers’ notes when sought by a grand jury. The appeals court emphasized that public interest would be “ill served by recognition of a governmental attorney-client privilege … in criminal proceedings inquiring into the actions of public officials.”
Although Starr has asserted Hillary Clinton is not a “client” of the White House lawyers, the larger question - and the one presented to the Supreme Court - is whether a governmental attorney-client privilege would exist in the context of grand juries, irrespective of who claims to be a “client.”
The case is a byproduct of the continuing Whitewater investigation by Starr, who is expected to file his response with the Supreme Court by May 29. A resolution by the justices could affect parts of the Whitewater probe and, more broadly, determine whether conversations between government lawyers and agency officials are shielded from grand jury investigations.
The Supreme Court is likely to announce by the end of June whether it will hear the case or let the lower court ruling stand.
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