Kenneth Starr has inspired both ridicule and anxiety in a White House that sees him as a conservative partisan. Now, to its chagrin, the Whitewater independent counsel has an even wider berth in pursuing a criminal case against First Lady Hillary Rodham Clinton.
The broader scope was granted Monday when the U.S. Supreme Court let stand a lower court ruling that notes of White House lawyers’ conversations with Mrs. Clinton must be given to prosecutors in the Whitewater investigation.
Without comment, the justices declined to hear a White House appeal of the federal appeals court ruling that the notes are not protected by lawyer-client confidentiality. The White House promptly delivered the disputed notes to Starr after the high court’s action.
For months, Starr’s investigation has focused on the testimony Mrs. Clinton provided to a federal grand jury amid suggestions that it may have been at variance with what she told White House lawyers.
In particular, Starr subpoenaed notes of a meeting on July 11, 1995, that White House lawyers had with Mrs. Clinton about her activities immediately after the suicide of Deputy White House Counsel Vincent Foster, her former law partner.
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Also at issue were notes of a meeting on Jan. 26, 1996, which followed her grand jury testimony about the discovery in the White House residence of a copy of her long-sought law firm billing records. Mrs. Clinton’s private attorney also attended the meetings but his notes are not at issue.
With the notes now in hand, Starr could call current and former White House lawyers before a federal grand jury he has convened in Little Rock, Ark. He also could call Mrs. Clinton for a second time.
The White House, which would prefer to focus attention on the legacy-building achievements of President Clinton’s second term, now faces the prospect of spending more time fashioning responses to Starr’s lengthy inquiry.
While Whitewater and its related issues have not appreciably hurt the president at the polls or in his approval ratings, it continues to serve as a drag on his reputation and stature.
In addition to the Whitewater action, the court recently rejected Clinton’s contention that the sexual harassment lawsuit filed against him by Paula Jones should be delayed until he leaves office. In both cases, the court, in effect, ruled that neither the president nor the first lady could cloak their private actions with executive privilege.
These developments come two weeks before Sen. Fred Thompson (R-Tenn.) is set to open hearings to investigate fundraising during the president’s re-election campaign. That inquiry is in addition to one by Rep. Dan Burton (R-Ind.) in the House that is even more sharply focused on the president.
Starr offered restrained praise of Monday’s developments. “We’re very pleased with the Supreme Court’s action,” he said outside his Little Rock office.
A grudging White House refused to alter its legal position, even though it complied with the ruling.
“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 White House counsel Charles Ruff.
Some White House officials expressed surprise at the decision, indicating they thought the court would at least hear the case.
Asked if release of the notes would be damaging to the first lady or to the administration in a political sense, one White House official said, “My impression is that there is nothing in the notes that is damaging, based on what I hear.”
The court declined to hear a White House appeal contending that notes between Mrs. Clinton and White House lawyers Jane Sherburne and Miriam Nemetz were protected by the same attorney-client privilege that applies to conversations between private citizens and their lawyers.
The appeals court ruled that the privilege did not protect government lawyers’ notes when they have been subpoenaed by a federal grand jury. It ruled that White House claims of confidentiality were outweighed by “the federal government’s criminal justice process.”
The first lady’s lawyers told the high court that there is a “compelling need for personal and government lawyers to consult in a situation where a person with official responsibility is under partisan attack and faces investigation by Congress, administrative agencies and one or more independent counsel.”
The first lady’s attorneys noted that the lower courts have recognized “a common interest” in confidential consultation between lawyers for two or more clients who “face the same adversary or are involved in the same investigation.”
Starr, who had urged the court to reject the White House appeal, has accused the White House of engaging in a “latter-day contrivance.”
In urging the court to take the action it ultimately did, Starr argued that a long review “would delay a highly sensitive criminal investigation.” If it had taken the case, a formal hearing probably would have been set for this autumn.
A series of developments involving Starr have left even his admirers nonplused through the Whitewater affair.
A Washington partner at the Chicago-based law firm of Kirkland & Ellis, he has persisted in representing outside clients, including tobacco companies politically at odds with the Clinton administration. Such representations are allowed by the independent counsel statute but, given the fact he was investigating the White House, that struck some as unseemly and politically naive.
Earlier this year Starr announced he would leave his Whitewater post to take a newly created position as head of the law school at Pepperdine University in California. The subsequent outrage, given the implication that the investigation wasn’t important enough to see through to the end, prompted him to put his departure on hold.
Earlier this month, Clinton lawyer David Kendall wrote Starr a scathing letter that accused him of besmirching the first lady’s name by innuendo.
Kendall said Starr violated grand jury secrecy rules and inflicted “leak-and-smear damage” on the Clintons.
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The letter followed a New York Times Magazine article that quoted unnamed prosecutors as saying that newly discovered Whitewater documents might shed some light on whether Mrs. Clinton told the truth to federal prosecutors.