Clintons Seek ‘Governmental Privilege,’ Starr Claims Whitewater Counsel Tells Supreme Court Withholding Lawyers’ Notes Blocks Probe

Whitewater independent counsel Kenneth W. Starr told the Supreme Court on Thursday that an attempt by White House officials to withhold notes government lawyers took in conversations with first lady Hillary Rodham Clinton is without merit and could mean months of delay for his investigation.

Starr argued that the notes are not protected by attorney-client privilege, as the White House has asserted, and that shielding them from a grand jury conducting a criminal investigation would pit one branch of government against another.

“What the case presents, at bottom, is a bold assertion of a governmental privilege against a federal grand jury’s interest in securing relevant evidence,” Starr said in a 30-page memorandum prepared by associate independent counsels John D. Bates and Brett M. Kavanaugh.

Starr urged the justices to decline the White House’s appeal of a lower-court order to relinquish notes taken by two lawyers in discussions with Hillary Clinton.

“This court’s review would delay a highly sensitive criminal investigation; indeed, several parts of the investigation could remain frozen for an additional three to 12 months.”

Requiring the White House to turn over the notes would not chip away at the principle of attorney-client privilege, Starr said. The White House has not asserted the privilege over other notes taken on Whitewater issues with Clinton aides, he noted.

The issue raised by the dispute over the lawyers’ notes is a narrow one, Starr said, turning in part on the role and duties of government attorneys. Starr cited the words of the Clinton administration’s own former White House Counsel, Lloyd Cutler, to bolster his argument.

Cutler noted, said Starr, there is “a rule of making it your duty, if you’re a government official, as we as lawyers are, (you have) a statutory duty to report to the attorney general any evidence you run into of a possible violation of a criminal statute. … When you hear of a charge and you talk to someone in the White House … about some allegation of misconduct, almost the first thing you have to say is, ‘I really want to know about this, but anything you tell me I’ll have to report to the attorney general.”’

Starr is seeking a set of notes taken July 11, 1995, during a meeting involving Hillary Clinton, her personal lawyer and two White House attorneys. They discussed Starr’s investigation into the handling of documents in the office of White House lawyer Vincent W. Foster Jr. after his death. That meeting took place a few weeks before a White House aide came upon Hillary Clinton’s long-subpoenaed Rose Law Firm billing records.

The second set of notes concerns Hillary Clinton’s testimony about the mysterious reappearance of those billing records. The notes were taken by former special White House counsel Jane Sherburne Jan. 26, 1996, the day Clinton appeared before a federal grand jury.