[Congressional Record Volume 141, Number 205 (Wednesday, December 20, 1995)]
[Senate]
[Pages S18939-S18964]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       DIRECTING THE SENATE LEGAL COUNSEL TO BRING A CIVIL ACTION

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to the consideration of Senate resolution 199, which the clerk 
will report.
  The legislative clerk read as follows:

       A resolution (S. Res. 199) directing the Senate Legal 
     Counsel to bring a civil action to enforce a subpoena of the 
     Special Committee to Investigate Whitewater Development 
     Corporation and Related Matters to William H. Kennedy, III.

  The Senate proceeded to consider the resolution.


                         Privilege of the Floor

  Mr. D'AMATO. Mr. President, I ask unanimous consent that the 
privilege of the floor be granted to staff during consideration of 
Senate Resolution 199, whose names shall be submitted to the desk at 
this time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The staff names are as follows:
  Alice Fisher, Chris Bartolomucci, Jennifer Swartz, David Bossie, 
Vinezo Deleo, Richard Ben Veniste, Lance Cole, Neal Kravitz, Tim 
Mitchell, Jim Portnoy, Glenn Ivey, Steve Fromewick, David Luna, Jeffrey 
Winter, and Amy Wendt.


                         Privilege of the Floor

  Mr. SARBANES. Mr. President, I ask unanimous consent that Joanne 
Wilson, a congressional fellow with Senator Simon's office, be granted 
privileges of the floor for the consideration of Senate Resolution 199.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. D'AMATO. Mr. President, I regret that we find ourselves here 
today. I must say that I believe my colleague, Senator Sarbanes, has 
made every reasonable effort to see if we could resolve this problem. 
And, indeed, in the past we have been able to resolve many of the 
outstanding issues with our professional staff and counsel working 
together--even some that might be considered contentious. I believe 
this one is beyond the control of my friend and colleague on the other 
side. We have made every reasonable effort to attempt to settle this 
matter. That is a question of the enforcement of a subpoena on Mr. 
Kennedy for his notes--William Kennedy was formerly associated with the 
Rose law firm, former associate counsel in the White House--regarding a 
meeting of November 3, 1993.
  I summarize that because it is well known. To go over every single 
aspect of it, I think, would draw this out unnecessarily.
  It was but a short time ago that my colleague and friend, Senator 
Sarbanes, requested that I speak to Chairman Leach in the House of 
Representatives in regard to an offer that was made, apparently, to the 
Speaker in regard to a possible settlement of the manner in which to 
produce these notes. Let me first say that I find the conduct of the 
White House to be absolutely one based upon delay and obfuscation--
delay, delay, delay, delay, delay.
  Let me tell you, with some specificity, what I am talking about. We 
asked for this information, and information was covered going back to 
August. We had numerous conferences with the White House with regard to 
not only this, but all of the relevant information. Throughout these 
proceedings, we have had the continued posture, publicly, of 
cooperation and, yet, when it came to producing relevant material 
evidence that goes to the heart of the matter, we have had delay.

  This is not the first time. Only when the issuance, or the threat of 
the issuance, of a subpoena and bringing this public would we get 
cooperation--in numerous instances. But this one takes the cake. Let me 
tell you why. Because after our August 25 request, ensuing meetings 
took place in September, October, and November. On November 2, it gets 
down to specificity as it relates to these notes of Mr. Kennedy. 
November 2. Here we are now in December. It comes to the issue of 
privilege for the first time and, remember, this is the same 
administration, and these people are working for the same President, 
who says, ``I will go to great lengths, and I cannot imagine raising 
the issue of privilege.'' And privilege is raised.
  Now, clearly, in looking at the legislative history of the Congress 
of the United States as it relates to the Executive, there has never 
been an instance where a committee, in its capacity of investigating, 
has been turned down or has the claim of privilege succeeded in 
thwarting that committee's request for documents. Never. There is a 
history on that. Clearly, bringing up the issue of privilege in this 
case is very, very doubtful, very, very tenuous. But I suggest, Mr. 
President, it flies in the face of what Mr. Clinton, the President of 
the United States, promised and said publicly: ``We will cooperate.'' 
What sense is it if you have 50,000 pages of documents? You can give us 
the Federal Registry. So what? You can give us a million pages. But 
when it comes to the relevant information that we request, there is 
repeated delay, delay, obfuscation.
  That is what we have had to deal with. This is a perfect example. 
Only when we say that we would vote these subpoenas, move this, do we 
begin to get any kind of response. Let me say that it is absolutely 
disingenuous, it is wrong, and it is a contrivance for the White House 
to say that it has offered us conditions by which to accept this 
agreement. The fact of the matter is, those conditions that they have 
added to it are over and above what was reasonable, and that back on 
November 2--again, almost 6 weeks ago--we said to them, ``You do not 
have to concede anything. Give us the information and indeed it will 
not be deemed a waiver.'' So we offered that to them.
  The whole month of November goes by, right up until the recess this 
time, and delay, delay, delay. They come back and they say, ``Oh, by 
the way, we will be willing, if you will agree that this is not a 
waiver of privilege, first, and then attach other conditions--
conditions to say that we, the Senate, should get approval from other 
bodies.''
  Now, I do not have any objection and, indeed, would suggest and 
recommend that other bodies have no reason--be they my colleagues in 
the House or investigatory bodies, or the independent counsel--to go 
along with this. But to make this public and then to claim that they 
have conceded something that we offered weeks ago is wrong. Spin 
doctors. They are very good at this spinning.
  In an effort, just a little less than an hour ago, to come about some 
kind of suggestion, some kind of resolve of this matter, my friend and 
colleagues suggested that I reach out to Chairman Leach, chairman of 
the House Banking Committee, which is also conducting its investigation 
into the matter known as Whitewater/Madison, and related matters.
  I said that I would, and I did. I have seen now for the first time a 
letter of response or a letter from Chairman Leach to Speaker Gingrich. 
I do not know if my friend and colleague has a copy of this letter. I 
will make a copy available. We just received this by fax at 10:30. Mr. 
President, I ask unanimous consent that the complete letter be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 
[[Page S18940]]

                                          Committee on Banking and


                                           Financial Services,

                                Washington, DC, December 19, 1995.
     Hon. Newt Gingrich,
     Speaker, Office of the Speaker,
     Washington, DC.
       Dear Mr. Speaker: I have reviewed the letter of December 
     18, 1995, to you from Jack Quinn, Counsel to the President.
       Committees of the Congress may from time to time consider 
     entering arrangements of one kind or another with the White 
     House. However, House determinations should not be contingent 
     on Senate agreement or vice versa.
       What the White House is attempting to do in this instance 
     is position the House of Representatives--and particularly 
     the Committee on Banking and Financial Services and the 
     Committee on Government Reform and Oversight--in opposition 
     to the Senate and the Independent Counsel. This is a 
     circumstance we should prudently avoid.
       In his cover letter Mr. Quinn suggests that ``our interest 
     is not in maintaining the confidentiality of the notes, but 
     rather in ensuring that the disclosure of the notes not be 
     deemed to waive the President's right to confidentiality with 
     respect to other communications on the same subject covered 
     in the notes.'' In the letter of December 14, 1995, from Ms. 
     Jane Sherburne to Mr. Michael Chertoff it is noted that ``our 
     concern about disclosing the Kennedy notes has not had to do 
     with the notes themselves, but instead the possibility that 
     disclosure would result in an argument that there had been a 
     waiver (in whole or in part) of the President's privileged 
     relationship with counsel.''
       It is my view that while these may be credible concerns for 
     the Counsel to the President to raise, they are inconsistent 
     with the objectives of the Congress concerning full and 
     complete disclosure in this matter. Just as the White House 
     is concerned with precedent from its perspective, so must 
     Congress be for its oversight prerogatives.
       To my knowledge, this request by the White House of the 
     House for a commitment relative to a Senate request is 
     unprecedented. It underscores the gravity of the issues at 
     stake and hints at White House concerns that a new path of 
     inquiry could be opened by the information transferred. In 
     this context, what the White House is inappropriately 
     attempting to do is hamstring one congressional body by 
     holding hostage documents subject to a constraining agreement 
     by the other body.
       What appears to be at issue with regard to the requested 
     documentation is that there may have been a transfer of 
     confidential law enforcement information related to an 
     investigation touching on an office holder to outside 
     attorneys representing the office holder in his personal 
     capacity. The then House Committee on Banking, Housing and 
     Urban Affairs was assured in 1994 that such disclosure did 
     not occur and would not be appropriate. In this regard, for 
     example, Bernard Nussbaum, former White House Counsel, 
     testified that he had on his staff at the White House Neil 
     Eggleston and Bruce Lindsey, both of whom attended the 
     meeting the notes for which are at issue. Under oath Nussbaum 
     stated that Lindsey and Eggleston ``would not release 
     confidential information which they received in the course of 
     [their] official capacities to anyone outside the White House 
     for any improper purpose, or for any purpose.''
       The White House's reluctance to turn over the requested 
     documents may cast doubt on the accuracy of this and similar 
     testimony by other White House officials before a committee 
     of the House of Representatives.
       On process grounds, I have sought to be as deferential as 
     prudently possible to the White House, but with each new 
     revelation, some of which if viewed in isolation might seem 
     relatively inconsequential, the evidence of a consistent 
     pattern of delay and obfuscation is clearly emerging.
       Accordingly, my advice is that a respectful letter be sent 
     to Mr. Quinn denying his request.
           Sincerely,
                                                   James A. Leach,
                                                         Chairman.

  Mr. D'AMATO. Mr. President, let me read part of the letter. I made 
that call because if there was an attempt to settle this and we could 
get the documents--let me start by saying this: If we are given the 
documents at any time--any time; at any time--why, we will cease and 
suspend. It is not necessary to go forward. We are asking the Secretary 
or the Senate legal counsel to seek enforcement of this subpoena, 
whether after the vote, prior to the vote--whatever.
  Let me suggest that the White House and the President has it within 
his discretion and within his hands to deliver those documents to us. 
We could end it tomorrow. If people say you are unnecessarily going 
forward--no, it is because we have had nothing but delay, delay, 
conditions that we have not been able to accept. We have had a rebuttal 
of our efforts going back to November 2 when we offered to say we will 
put aside the question of privilege, you have not waived it. Yet it is 
at the last moment when we finally say we will vote to issue a subpoena 
that they come forth with what I consider to be another tactic of 
delay.
  Let me read part of Chairman Leach's letter:

       What appears to be at issue with regard to the requested 
     documentation is that there may have been a transfer of 
     confidential law enforcement information related to an 
     investigation touching on an office holder to outside 
     attorneys representing the office holder in his personnel 
     capacity. The then House Committee on Banking, Housing and 
     Urban Affairs was assured in 1994 that such disclosure did 
     not occur and would not be appropriate. In this regard, for 
     example, Bernard Nussbaum, former White House counsel, 
     testified that he had on his staff at the White House, Neil 
     Eggleston and Bruce Lindsey, both of whom attended the 
     meeting the notes for which are at issue. Under oath Nussbaum 
     stated that Lindsey and Eggleston ``would not release 
     confidential information which they received in the course of 
     [their] official capacities to anyone outside the White House 
     for any improper purpose, or for any purpose.''

  I have a copy of a hearing before the Committee on Banking, Finance 
and Urban Affairs, dated July 28, 1994, page 18. Chairman Leach 
furnished this to me, again by fax at 10:32, less than half an hour 
ago.
  Mr. Nussbaum's testimony:

       On my staff, I had a number of very experienced people, 
     Congressman. I had Cliff Sloan, who was a former assistant 
     solicitor general, a partner in a distinguished law firm. I 
     had Neil Eggleston, a former assistant U.S. attorney in the 
     Southern District of New York and an experienced 
     litigator, Bruce Lindsey, who is on the White House staff 
     is a lawyer of high competence and high integrity. I 
     didn't feel it necessary to issue those kind of 
     instructions to those people.
       I knew and I still know to this day that those people would 
     not release confidential information which they received in 
     the course of our official capacities to anyone outside the 
     White House for any improper purpose, or for any purpose.

  A letter that Chairman Leach sent to me says:

       The White House's reluctance to turn over the requested 
     documents may cast doubt on the accuracy of this and similar 
     testimony by other White House officials before a committee 
     of the House of Representatives.
       On process grounds, I have sought to be as deferential as 
     prudently possible to the White House, but with each new 
     revelation, some of which viewed in isolation might seem 
     relatively inconsequential, the evidence of a consistent 
     pattern of delay and obfuscation is clearly emerging.
       Accordingly, my advice is that a respectful letter be sent 
     to Mr. Quinn denying his request.
       Sincerely, Chairman Leach.

  The chairman advised me he might have additional letters on this 
matter.
  I have made an attempt, as its relates to asserting what the position 
of my colleagues--I have explained our position that we have no problem 
in going forward under the conditions that we had offered to this 
administration, to this White House, back in early November, and which 
was the subject matter of discussions, repeatedly, for weeks and weeks 
and weeks as it related to this and other matters.
  So when we want to talk about avoiding constitutional clashes, I say 
right now, Mr. President, please, keep your promise to the American 
people. Give us the information that Congress is entitled to, that the 
people are entitled to.
  Let me, if I might, refer to the New York Times of yesterday, and, 
Mr. President, I will ask that the complete editorial be printed in the 
Record.
  The editorial is entitled: ``Averting a Constitutional Clash.''

       If Mr. Clinton relinquishes the documents, it would be a 
     positive departure from the evasive tactics that have marked 
     the Clintons' handling of questions about Whitewater since 
     the 1992 campaign. Mr. Clinton's assertion that the 
     subpoenaed material is protected by lawyer-client privilege, 
     and his quieter claim of executive privilege, are legally 
     dubious and risk a damaging precedent.

  As it relates to this, let me read just part of the editorial of 
December 14 of the Washington Post:

       The privilege claims also undercut Mr. Clinton's much-
     professed interest in getting the facts out.

  Mr. President, I suggest again that attempting to raise this claim 
and raising and delaying this matter for months--for months, now--and 
forcing us to demonstrate that we are absolutely serious in terms of 
our determination to get the facts that we are entitled to, that the 
Congress of the United States and the Senate of the United States, the 
American people are entitled to, will not be delayed any longer.
  Again, I said at any point, at any time the White House says we will 
deliver and we are going to deliver these 

[[Page S18941]]
within a period of time--and I do not mean days; I do not mean weeks; I 
mean within an hour or 2 hours--we will stop, but not until that takes 
place.

       The privilege claims also undercut Mr. Clinton's much-
     professed interest in getting the facts out. To the contrary, 
     these actions of administration officials and associates--
     like other of their actions in this long, evolving Whitewater 
     affair--look cagey, not candid, and are suggestive of people 
     with something to hide.

  Let me go on:

       It is fair to ask whether the White House exploited 
     information it obtained improperly from Federal agencies that 
     were looking into possible criminal matters involving the 
     Clintons.

  That is the Washington Post editorial Thursday, December 14.
  We can go on and on. December 12, New York Times, an editorial:

       The committee reasonably wants to know about government 
     matters that may have been discussed, such as the handling of 
     investigations by the Treasury Department . . .

  That is exactly what Chairman Leach points out. Those questions were 
raised. Now we know, at least this Senator knows, for the first time, 
Mr. Nussbaum said, no, materials would not be turned over of this 
nature, or words to that effect.

       A court will decide whether notes taken at the meeting and 
     a White House memo about the session can be deemed personal 
     legal papers. That will take an expansive interpretation on 
     Mr. Clinton's behalf.
       To be sure, citizen Bill Clinton is entitled to claim 
     whatever privacy the courts will give him. But President 
     Clinton, the politician and national leader, cannot expect 
     the public to be reassured by mysterious mobile files and 
     promises of openness that disappear behind the lawyer-client 
     veil.

  Mr. President, I ask unanimous consent these editorials be printed in 
the Record in their entirety for completeness.
  There being no objection, the articles were ordered to be printed in 
the Record, as follows:

              [From the New York Times, December 19, 1995]

                    Averting a Constitutional Clash

       President Clinton may be moving to avoid a constitutional 
     confrontation with Congress over the Senate Whitewater 
     committee's access to notes taken by a White House lawyer at 
     a Whitewater meeting two years ago that was attended by 
     senior officials and personal lawyers for Mr. Clinton and his 
     wife, Hillary Rodham Clinton.
       If Mr. Clinton relinquishes the documents, it would be a 
     positive departure from the evasive tactics that have marked 
     the Clintons' handling of questions about Whitewater since 
     the 1992 campaign. Mr. Clinton's assertion that the 
     subpoenaed material is protected by lawyer-client privilege, 
     and his quieter claim of executive privilege, are legally 
     dubious and risk a damaging precedent.
       A forthcoming response to the Senate's request would seem 
     especially timely in view of new disclosures that more 
     records have disappeared from the Rose Law Firm. These 
     documents deal with Mrs. Clinton's legal work for Madison 
     Guaranty, the failed savings and loan run by their Whitewater 
     partner. This news comes one week after the disclosure that 
     Vincent Foster removed three files from the firm during the 
     1992 election campaign and turned them over to the Clintons' 
     trusty political errand-runner, Webster Hubbell.
       The dispute with the committee involves notes taken by 
     William Kennedy 3d, an associate White House Counsel, at a 
     November 1993 meeting at the offices of the Clintons' private 
     attorneys. This meeting was attended by three members of the 
     White House Counsel's office, three lawyers for the Clintons 
     and Bruce Lindsey, one of the President's senior political 
     aides. Clearly, lawyer-client confidentiality ought to apply 
     to Mr. Clinton's exchanges with his personal lawyer. But to 
     try to extend the privilege to such a broadly constituted 
     meeting is a stretch, especially given the committee's 
     mandate to find out whether Administration officials, 
     including some at the meeting, may have improperly used 
     confidential Government information to aid the Clinton's 
     private defense.
       Mr. Clinton's various lawyers, and some legal ethics 
     experts, speak of the overlap of the President's public and 
     private roles to justify the claim of lawyer-client 
     privilege. But this argument misses the vastly different and 
     even conflicting responsibilities of Mr. Clinton's two sets 
     of attorneys.
       As for executive privilege, it ought to be a way to protect 
     a narrow band of Presidential privacy on important matters of 
     governance, including national security. It is a distortion 
     of the doctrine's history to raise it to block a legitimate 
     Congressional inquiry into the Clintons' Arkansas financial 
     dealings and the official conduct of senior Administration 
     aides.
       A decent resolution that had the White House handing over 
     the notes seemed to be in sight over the weekend. But 
     yesterday Senator Alfonse D'Amato, the committee chairman, 
     complained that the White House was trying to bargain in the 
     media instead of negotiating with the committee. It should 
     still be possible to make arrangements before tomorrow, when 
     the full Senate is due to take up the matter. If not, the 
     Senate has no choice but to vote to go to court to enforce 
     the committee's subpoena.
                                                                    ____


             [From the Washington Post, December 14, 1995]

                       Now a Subpoena Controversy

       In refusing to honor a Senate Whitewater committee subpoena 
     for notes taken by then-White House associate counsel William 
     Kennedy during a Nov. 5, 1993, meeting between White House 
     officials and the Clintons' attorneys, the administration 
     risks traveling down a familiar dead-end. Seeking refuge from 
     a legislative inquiry behind the twin shields of executive 
     privilege and attorney-client privilege--as the 
     administration is doing--may slow Congress. But it will do 
     nothing to avoid a confrontation and a debilitating fight 
     that is likely to end up in court.
       Claims of executive and attorney-client privilege play 
     directly into the hands of Republicans on the Hill who, 
     despite their wails of protest, are not the least bit 
     bothered by the image of a stonewalling Democratic 
     administration. The privilege claims also undercut Mr. 
     Clinton's much-professed interest in getting the facts out. 
     To the contrary, these actions of administration officials 
     and associates--like other of their actions in this long, 
     evolving Whitewater affair--look cagey, not candid, and are 
     suggestive of people with something to hide. The political 
     affiliation of Sen. Alfonse D'Amato and company 
     notwithstanding, there are aspects of the November 1993 
     meeting that raise legitimate questions.
       It is fair to ask whether the White House exploited 
     information it obtained improperly from federal agencies that 
     were looking into possible criminal matters involving the 
     Clintons. If, for instance, administration officials used 
     confidential government information to try to shield Bill and 
     Hillary Rodham Clinton from exposure to probes into Madison 
     Guaranty, the failed Arkansas thrift partially owned by the 
     Clintons, and the Small Business Administration-backed loan 
     company owned by Judge David Hale, then they have something 
     serious to answer for. Obviously Mr. Kennedy's notes on the 
     Nov. 5 meeting can shed light on those questions. His notes, 
     however, are what the administration seeks to withhold.
       This impasse between the Senate committee and the White 
     House over so-called privileged documents must and will be 
     resolved. It would be better, however, if the dispute could 
     be settled between the executive and legislative branches. A 
     reasonable accommodation of each side's interests, not a 
     legal challenge, is what's needed at this time. The 
     overriding interest is to get at the truth. If, however, a 
     satisfactory solution cannot be reached, then the courts must 
     decide. It shouldn't have to come to that.
                                                                    ____


              [From The New York Times, December 12, 1995]

                       Traveling Whitewater Files

       Just when it seemed possible that the White House could not 
     handle Whitewater any more clumsily, here come two new moves 
     to undermine public confidence.
       The disclosure that Vincent Foster removed three files from 
     Hillary Clinton's law firm during the 1992 election campaign 
     and turned them over to the Clintons' political fixer, 
     Webster Hubbell, is truly a blow to those who want to believe 
     the Clintons have nothing to hide. The files related to Mrs. 
     Clinton's work for Madison Guaranty, the savings and loan 
     owned by the Clintons' Whitewater investment partner, James 
     McDougal. The White House will no doubt argue that the files 
     are innocuous.
       But that claim seems lighter than air compared with the 
     fact that they were stored in the basement of a lawyer later 
     convicted of a felony and that they disappeared from the Rose 
     Law Firm in a year when the Clinton campaign team was 
     perfecting its stonewall defense on Whitewater.
       The other matter has to do with the dubious claim of 
     lawyer-client privilege being advanced by President Clinton 
     about a 1993 meeting at which his senior lawyers and aides 
     discussed Whitewater. Mr. Clinton seems headed for a messy 
     legal showdown with the Senate Whitewater committee. But the 
     President is stretching attorney-client privilege beyond any 
     reasonable limit and also revoking his promise of openness 
     about this matter.
       Surely no one wants to intrude on exchanges between the 
     President and his personal lawyers. But this meeting included 
     a top political aide, Bruce Lindsey, and a battery of 
     attorneys on the public payroll, including White House 
     Counsel Bernard Nussbaum and two of his assistants.
       The committee reasonably wants to know about government 
     matters that may have been discussed, such as the handling of 
     the investigation by the Treasury Department and the 
     Resolution Trust Company into Madison Guaranty. A court will 
     decide whether notes taken at the meeting and a White House 
     memo about the session can be deemed personal legal papers. 
     That will take an expansive interpretation in Mr. Clinton's 
     behalf.
       To be sure, citizen Bill Clinton is entitled to litigate 
     all he wants and to claim whatever privacy the courts will 
     give him. But 

[[Page S18942]]
     President Clinton, the politician and national leader, cannot expect 
     the public to be reassured by mysteriously mobile files and 
     promises of openness that disappear behind the lawyer-client 
     veil.

  Mr. D'AMATO. Mr. President, last Friday our committee voted out this 
resolution, asking that the full Senate authorize the Senate legal 
counsel to go to court to enforce the subpoena served on William 
Kennedy, former associate counsel to the President. The subpoena seeks 
the notes that Mr. Kennedy took at the Whitewater defense meeting, and 
which was attended by others, on November 5, 1993, with other White 
House officials and President and Mrs. Clinton's personal attorneys, a 
meeting that took place at the Clintons' personal attorney's office.
  The President has repeatedly claimed that he would not assert 
privilege with regard to Whitewater matters. He has promised to 
cooperate fully with our committee investigation. But over the past 
weeks, President Clinton has chosen to resist our committee's 
investigation by preventing Mr. Kennedy from turning over his notes. 
Our committee must obtain Mr. Kennedy's notes in order to fulfill our 
obligation to the Senate and to the American people.
  I could go on and on. I, indeed, will raise other matters. I will say 
that what we are attempting to do is to find the truth about the 
failure of an Arkansas savings and loan called Madison Guaranty that 
cost the American people $65 million. We want to find the truth about 
what happened to documents in Vincent Foster's office following his 
death, and why White House officials prevented law enforcement 
officials from seeing those documents; the truth about the activities 
of Hillary Clinton's law firm, the Rose Law Firm, in connection with 
their representation of Madison; the truth about White House efforts to 
obtain confidential law enforcement information about Madison and 
Whitewater and what they did with that information; the truth--not what 
Mr. Lindsey has said to us, that he gathered it so he could answer 
newspaper inquiries. But getting to the truth about these matters has 
proved to be rather difficult. And these notes, we believe, are 
relevant and will answer some of the questions and will lead us to 
other areas.
  President Clinton's refusal to deal openly with our committee's 
investigations comes at a time when damaging facts have begun to mount 
and mount. These are facts that we have had to uncover on a daily 
basis, dragging out, dredging out, fighting for the information. So, 
again, to come before the American people and say we provided 50,000 
pages of documentation means little, when the critical, crucial 
matters--which may be 8 pages, 10 pages, 2 pages of notes, telephone 
calls, logs that are missing, missing files--that is the key.
  Vincent Foster was deeply concerned about Whitewater. That he was 
concerned about Whitewater can be attested to by his notes in which he 
said, ``Whitewater, can of worms you should not open.'' Vincent Foster 
had files about Madison that Webster Hubbell transferred to the 
Clintons' personal attorneys. Their phone records and White House entry 
and exit logs indicate that the President, that the First Lady, her 
chief of staff, Maggie Williams, and the First Lady's confidant, Susan 
Thomases, were deeply involved in the decision to prevent law 
enforcement officials from searching Vince Foster's office.

  Let me again say, phone records indicate and the White House entry 
and exit logs indicate that the First Lady, the chief of staff, Maggie 
Williams, and the First Lady's confidant, Susan Thomases, were deeply 
involved.
  That the First Lady was concerned about allowing law enforcement 
officers unfettered access to the documents in Mr. Foster's office; 
that a Secret Service officer saw Mrs. Clinton's chief of staff, Maggie 
Williams, carry files from Foster's office on the night of his death; 
that Hillary Clinton had not been forthcoming about the amount of work 
she did for Madison while a partner at the Rose Law Firm.
  We have also learned that the critical billing records have 
disappeared, which raises the question: What was in the files Maggie 
Williams was carrying from Vince Foster's office? What did they 
contain? Are they the billing records? Where have the billing records 
gone to?
  That former White House Counsel, Lloyd Cutler, misled the Banking 
Committee when he claimed, in the summer of 1994, that the Office of 
Government Ethics had exonerated the White House colleagues for their 
handling of confidential RTC information and that high White House 
officials sought to obtain confidential information from the Small 
Business Administration and in the Small Business Administration office 
in Little Rock about David Hale, a former Arkansas judge, who contended 
that the then Governor Clinton forced him to make an improper $300,000 
loan to the Governor's Whitewater partner, Susan McDougal; that there 
was a deliberate effort to obstruct the RTC's criminal investigation of 
Madison and Whitewater; the U.S. attorney in Little Rock remained on 
the Madison case over the warnings of senior Justice Department 
officials in Washington and declined the first RTC referring.
  Mr. President, our committee has uncovered these and other patterns, 
patterns of people who cannot remember where they were or what they 
were doing or who they were doing it with. We have a constant attempt 
at a diversion of information and the American people and the committee 
have a right to the facts.
  Mr. President, let me say it is the intent of the committee to go 
forward. It is the intent of the committee to see to it that the 
subpoenas are enforced. It is the intent of the committee to bring this 
matter to a head.
  I would say, even after a vote we stand ready to accept this 
information as we had outlined, going back to November. We had detailed 
that, I believe in writing, November 27. What we want is the facts. 
What we want is the information that the President has promised us.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. SARBANES. Mr. President, I am going to take a few minutes to 
discuss the legal issue because I think it is very important in terms 
of the Senate reaching a decision whether to go to court with respect 
to obtaining these notes. The fact of the matter is the White House has 
said that these notes will be available. The White House, in order to 
make the notes available, is seeking certain assurances that it will 
not have a general, broad waiver of the attorney-client relationship. 
Our committee has indicated that the conditions the White House is 
seeking are reasonable ones and our committee is prepared to agree to 
them.
  The White House concern, then, is with respect to other investigative 
bodies. For example, the independent counsel and the House of 
Representatives.
  As I understand it, I am told that the White House has reached an 
understanding with the independent counsel that I presume parallels 
what our committee is prepared to do regarding the turning over of the 
notes as not being a waiver. So we are very close to having a 
resolution of this matter.
  The problem now becomes, will the House of Representatives treat it--
are they unwilling, in effect, to say this is not a general waiver?
  Let me discuss briefly why this is important. The White House has 
made a number of proposals to try to resolve this matter. I disagree 
with the chairman, in terms of the chronology he set out with respect 
to efforts, back and forth, and who was being uncooperative. I think, 
frankly, the committee staff, on occasions, was not seeking a 
resolution of this matter and was moving in the direction of provoking 
a confrontation and a crisis, constitutional confrontation.
  The special committee has agreed that the production of the notes of 
Mr. Kennedy, taken at this November 5, 1993, meeting--on which there 
are strong assertions of attorney-client privilege--but our committee 
has agreed that the production of those notes shall not act as a 
general waiver of the attorney-client privilege.
  The only remaining hurdle then to getting those notes is agreement by 
the independent counsel and the House. I understand the independent 
counsel now has worked out an understanding with the White House.
  I believe that the concerns about a general waiver of the attorney-
client privilege are meritorious, and that the 

[[Page S18943]]
Senate should make additional efforts to accommodate them before 
sending this matter to the Federal court. It always should be borne in 
mind that when the executive and legislative branches fail to resolve a 
dispute between them and instead submit their disagreements to the 
courts for resolution, significant power is then placed in the judicial 
branch to write rules that will govern the relationship between the 
elected branches. In other words, we have a chance here to work this 
out in a way that we get the notes, the White House concern about a 
general waiver of a privilege is accommodated, and there is no need to 
go to court running the risk, I would suggest to some Senators, of an 
adverse precedent. And I will make reference to that shortly.
  Since a mutually acceptable resolution of this matter is at hand, if 
we can just reach out and grasp it, I strongly urge the Senate not to 
precipitate unnecessary litigation by passing this resolution. The 
argument is made, well, there is a time factor. If you go to court on 
this matter, there certainly will be a time factor. I mean you are 
caught in a situation here, the choice as it were, between achieving a 
resolution which would make the notes immediately available to us and 
going through an extended court proceeding which would take an extended 
period of time even under the most expedited procedures.
  Let me first simply state that a number of legal scholars have 
examined this meeting that was held on the 5th of November of 1993, a 
meeting between the private lawyers the President was engaging and the 
governmental lawyers who had been handling various aspects of these 
matters for the President. The meeting was to brief the new private 
counsel hired by the Clintons. Several legal scholars have examined 
that meeting and have concluded that a valid claim of privilege has 
been asserted.
  For example, University of Pennsylvania law professor Geoffrey 
Hazard, a specialist in legal ethics and the attorney-client privilege, 
provided a legal view that the communications between White House 
lawyers and the President's private lawyers are protected by the 
attorney-client privilege.
  Other legal experts have concurred with that view. New York 
University law school professor Stephen Gillers stated, and I quote--
this was in the paper:

       The oddity here is that Clinton is in both sets of clients, 
     in one way with his presidential hat on and in one way as a 
     private individual. The lawyers who represent the 
     President have information that the lawyer who represents 
     the Clintons legitimately needs, and that is the common 
     interest. It is true that Government lawyers cannot handle 
     the private matters of Government officials. However, 
     perhaps uniquely for the President, private and public are 
     not distinct categories. So while the principle is clear, 
     the application is going to be nearly impossible.

  And there are other legal experts who have said that there is a 
privilege that applies here.
  Efforts have been made over the last few weeks to try to resolve this 
matter in a way that the committee would get the information it was 
seeking, and the White House would get assurances that it was not 
broadly and generally waiving the lawyer-client privilege--not only 
with respect to this particular meeting but with respect to all other 
meetings that touched on this subject matter. That is what the law may 
well provide. And that is one of the things, of course, that seems to 
me is a legitimate concern on the part of counsel for the President.
  There is an original proposal for Mr. Kendall, the President's 
private lawyer, that would allow for questioning of people at that 
meeting in terms of what they knew when they went in and what they did 
after they came out. But I will not get into the questioning about the 
meeting itself. I thought that was an effort to try to accommodate, and 
to give the committee the chance to gain information, and, yet, not 
intrude upon the lawyer-client privilege. The majority projected that 
proposal, and the White House went back and sort of obviously 
reconsidered and came forward with a new proposal that embraced 
providing the notes to the committee.
  Mr. Kennedy, it needs to be pointed out here, is sort of a 
stakeholder. He happens to have these notes. He is not providing them 
in response to the committee's subpoena because he is instructed that 
he has to observe the lawyer-client privilege and, therefore, cannot 
provide this information. The canon of lawyer ethics is that you have 
to abide by the lawyer-client privilege. So he in effect says, ``Well, 
I have these notes. This is what I have been told and this is what I am 
doing.'' The White House and Mr. Kendall, the President's lawyer who 
was brought in to handle the private side of this matter, have in 
effect said that those notes ought not to be provided until they can 
get assurances with respect to the lawyer-client privilege.
  Let me just make a point that I think legitimate privilege issues 
have been raised. I think it is clear that an attorney-client privilege 
does apply here. It is one of the oldest of privileges for confidential 
communications known to the law. I mean, if anyone stops and thinks 
about it, it is obvious why you have it. People then say, ``Well, if 
you have nothing to hide, why do you not tell everything?'' Of course, 
the logic of that assertion is that there would be no lawyer-client 
privilege. The logic of that assertion is that there would be no 
lawyer-client privilege, and in this instance, the White House says we 
are prepared to give the notes. We are prepared to provide the notes. 
We just want assurances that providing the notes will not be seen as a 
general waiver of the lawyer-client privilege.

  So that in other fora, and in other matters, it will be sort of, 
well, in fact here you waive the lawyer-client privilege.
  So they are trying to be forthcoming. They are trying to meet the 
demands of the committee for this information, and at the same time not 
completely eliminate the lawyer-client privilege. And the committee in 
the conditions it is prepared to accept--our committee, this 
committee--has moved to address that problem. The question then is will 
others who may undertake an investigation be prepared to do the same? 
As I understand it, the independent counsel is prepared to do so as 
well.
  So it now really is a question of whether the House, the relevant 
committees in the House of Representatives, are prepared to do the 
same. Will they in effect make the same undertaking our committee is 
prepared to take? I might point out it does not lose them any position. 
I mean I have read this letter from Chairman Leach that Chairman 
D'Amato provided me. I am not quite sure that it is understood that 
they will not lose any of the positions they now have. The notes will 
become available. But it is understood that the notes do not constitute 
a waiver of a privilege. And the question then becomes why will not 
that be acceptable? What is the difficulty with that? I mean we 
obviously asked the same question amongst ourselves and reached a 
conclusion that those conditions were reasonable. There were some 
others that the White House dropped by the wayside. But we are now back 
to these conditions as was mentioned in the committee hearing, the two 
or three which the committee had been prepared to accept.
  Let me just talk briefly about the general waiver issue.
  The concern here is that the production of these notes could 
constitute a general waiver of the attorney-client privilege, and it 
would be a waiver that would apply to all communications relating to 
the subject matter of the meeting. In other words, you could then turn 
to other meetings, other discussions between the President and his 
lawyers and say, oh, no, the privilege has been waived with respect to 
those meetings.
  It is this far-reaching aspect of the law of attorney-client 
privilege, the subject matter waiver, that creates the difficulty the 
special committee is facing here. Production of the notes without these 
understandings could be construed as a waiver of the privilege as to 
all communications on this subject matter. Potentially such a waiver 
would encompass all communications between the President and his 
lawyers at any time up to the present that pertain to the subject 
matter of this meeting.
  Obviously, that is very far-reaching. The committee itself recognized 
that. Our committee recognized that. And our committee in effect said, 
no, that is not what we want to do. We do not 

[[Page S18944]]
want to intrude in that manner into the attorney-client privilege, and 
therefore we are willing to agree to the condition that it would not be 
used, the argument would not be used that this constituted a general 
waiver.
  This is a complex issue, no question about it, and it seems to me 
that taking it to the courts instead of resolving it, especially when 
it appears we are very close to resolution of the matter--that must be 
understood. We have a situation now in which the White House says we 
are willing to make the notes available. Our committee has said we will 
accept them on certain conditions which constitute an accommodation 
between the legislative and the executive branch. The independent 
counsel apparently has taken the same view. And the question becomes, 
will the House of Representatives join in, so you do not end up having 
a whipsaw action in which notes are provided in good faith and on 
certain understandings and then another investigative body says, oh, 
no, we are going to treat that as a general waiver and we are going to 
proceed on that basis, after this committee has said it would not treat 
it as a general waiver and after apparently the independent counsel has 
taken the same position.
  In my view, this dispute has escalated needlessly. The White House 
has offered to provide the Kennedy notes to the committee, provide the 
Government lawyers for testimony, and in my view, rather than 
proceeding to the court at this time, the Senate should make a further 
effort to obtain this information in a manner that protects against an 
unintended general waiver of the attorney-client privilege.

  It seems to me there is a constructive role that the committee can 
play in trying to accomplish that. We are not very far away from it, in 
my view, and it comports I think with the advice and counsel that has 
generally been provided historically with respect to these potential 
confrontations between the Congress and the Executive.
  First of all, let me note that Congress historically has respected 
the attorney-client privilege. Indeed, Congress first acknowledged the 
confidentiality of attorney-client discussions back in the middle of 
the last century. In the middle of this century, the Senate considered 
a rule that would have expressly recognized testimonial privileges that 
traditionally are protected in litigation. The Senate thought of 
adopting a rule. It ultimately decided that a rule was unnecessary and 
stated:

       With few exceptions, it has been committee practice to 
     observe the testimonial privileges of witnesses with respect 
     to communications between clergyman and parishioner, doctor 
     and patient, lawyer and client, and husband and wife.

  As recently as 1990, Senate majority leader Mitchell stated that:

       As a matter of actual experience, Senate committees have 
     customarily honored the attorney-client privilege where it 
     has been validly asserted.

  That has been true even in highly charged political investigations 
with respect to respecting the attorney-client privilege. For instance, 
during Iran-Contra, Gen. Secord and Col. North successfully asserted 
the attorney-client privilege. During the proceedings against Judge 
Hastings, the impeachment trial committee considered his claim of 
attorney-client privilege and ruled that testimony would not be 
received in evidence.
  The Senate's most recent experience with the attorney-client 
privilege arose in the disciplinary proceedings against Senator 
Packwood. Prior to the controversy over Senator Packwood's diaries--
prior to that--the Select Committee on Ethics considered Senator 
Packwood's assertion that certain documents other than the diaries were 
covered by the attorney-client or work product privileges. That was the 
assertion he made, that he was covered by these privileges.
  To resolve that claim, the Ethics Committee appointed a former 
jurist--interestingly enough, it was Ken Starr--as a hearing examiner 
to make recommendations to the committee and accepted his 
recommendation that the privilege be sustained. With respect to the 
diaries, the committee agreed to protect Senator Packwood's privacy 
concerns by allowing him to mask over the information dealing with 
attorney-client privilege.

  So there was no intrusion into the attorney-client privilege claim in 
that instance. The Senate respected that. This committee has extended 
protection of the attorney-client privilege to witnesses that have been 
before the committee.
  During the hearing testimony of Thomas Castleton, Chairman D'Amato 
confirmed that Castleton need not testify about conversations with his 
attorney. Similarly, he limited questioning of Randall Coleman by 
minority counsel regarding an interview his client, David Hale, granted 
to a reporter for the New York Times during which Coleman was present. 
That was Coleman, the client, and this reporter for the New York Times, 
and that was given this protection.
  It seems to me that the President and Mrs. Clinton ought to have 
protection for the lawyer-client privilege consistent with past Senate 
practice.
  Let me turn to why we need to avoid a needless constitutional 
confrontation by pursuing a negotiated resolution to this dispute.
  Congressional attempts to inquire into privileged executive branch 
communications are rare and with good reason. In fact, the courts on 
occasion have refused to determine the dispute and have encouraged the 
two branches to settle the differences without further judicial 
involvement. In other words, when it comes to the court, it says you 
ought to settle it between yourselves and not involve the court in 
trying to address this matter. The U.S. Court of Appeals for the 
District of Columbia has long held that Presidential communications are 
presumptively privileged, and therefore it would take this matter to 
court. The committee is taking on a heavy burden.
  Really what you have to do here is balance the interests. And how do 
you reconcile these differences? William French Smith, when he was the 
Attorney General, commented:

       The accommodation required is not simply an exchange of 
     concessions or a test of political strength, it is an 
     obligation of each branch to make a principled effort to 
     acknowledge and, if possible, to meet the legitimate needs of 
     the other branch.

  The White House is trying to meet our needs by providing the notes. 
The White House now is taking the position, we will provide to the 
committee. The committee asserts that it wants these notes and needs 
these notes in order to carry forward its inquiry. The White House has 
said we will make these notes available. The White House says there is 
one problem with doing that, that making these notes available will 
then be seen as a general waiver of the lawyer-client privilege. And we 
do not want to be in that posture. We want to have assurances with 
respect that this does not constitute a waiver of the lawyer-client 
relationship.
  This committee has recognized that argument because the committee has 
indicated that it is willing to accept the conditions that preclude 
that general waiver. The White House says well, that works with the 
committee, but there are other investigative places that could make the 
providing of the notes to the committee say this constitutes a general 
waiver, which is, I think, what the law provides. So they say, ``We 
want assurances with respect to these other bodies.''
  One such body was the independent counsel. It was my own view that we 
should all get the independent counsel in, have a meeting, see if we 
cannot resolve this matter, and that the committee could have, you 
know, played a constructive role in doing that.
  In any event, the White House went and engaged in its own direct 
discussions with the independent counsel and I am told they reached an 
understanding as of yesterday evening that will make the notes 
available, will provide the assurances against the general waiver of 
the lawyer-client relationship.
  The question now becomes with respect to the House of 
Representatives, the White House apparently wrote to the Speaker about 
this matter. The two chairman of the relevant committees have indicated 
that they will not agree to the assurance, the very one this committee 
is prepared the make. I find it difficult to understand that. In other 
words, there is nothing in these conditions that causes them to lose 
anything in terms of their position. It does not deny them their 
position in any way with respect to future assertions that they might 
choose to make. 

[[Page S18945]]
 It makes the notes available, which people say needs to be done, and 
it does it in a way that the White House is not confronted with the 
very high risk that they have waived the lawyer-client relationship.

  The Senate has recognized and respected this relationship for more 
than a century. A waiver of the privilege would deprive the President 
and Mrs. Clinton of the right to communicate in confidence with their 
counsel, a basic right afforded to all Americans. It is my view that 
the committee ought to turn its attention to resolving this matter in a 
way that the committee is prepared to do with respect to itself, that 
the independent counsel is prepared to do.
  If that is accomplished, then the notes become available and you do 
not have any risk of the waiver of the principle. If you go to court, 
who knows how a court will rule. I think there is a very substantial 
chance that the court will rule against the Senate, and may in fact 
establish limits with respect to the Senate's congressional 
investigatory power that some of those pressing this matter will come 
to regret. You do not know what the court's outcome will be, but I 
think that is a very real possibility in this situation.
  There has been a lot of movement on this issue. And it seems to me 
that the offer now that the White House has made in an effort to try to 
resolve it is very reasonable, is justified on the law and that it 
behooves us to try the accommodate to it and find a solution to this 
matter, a solution which would make this information available now as 
opposed to going to court.
  I have difficulty understanding why this matter is at this point. I 
do not understand--I do not begin to understand why the House 
committees are taking this position because I think if they make the 
accommodation they have something to gain and nothing to lose. Now, if 
they simply want to provoke a confrontation, if that is the objective, 
that is a different story.
  Mr. D'AMATO. Will my friend yield for an observation?
  Mr. SARBANES. Certainly.
  Mr. D'AMATO. On this point, and I just got this letter faxed to me. 
It says 12:18, but indeed it was 11:18. It is off an hour, this time 
clock, wherever this fax is operating from, which I have just sent over 
to my colleague.
  Mr. SARBANES. Still on daylight saving time.
  Mr. D'AMATO. And it comes from Chairman Leach. And he did point out 
to me in a conversation--and it has just taken me a little time to 
assimilate this--obviously Chairman Leach is very perplexed and 
disturbed and will not agree to a limitation of his rights even as it 
relates to the possible lawyer-client relationship because he feels 
that there is testimony in the record before him to his question that 
Mr. Nussbaum indicated these people at the meeting would not transfer 
information that should not have been transferred that would be 
inappropriate. I am summarizing it in order to save time.

  And he goes down to--I will go to the last two paragraphs on page 
two. He says:

       To accede to the White House position that disclosure of 
     the notes of the Nov. 5, 1993 meeting does not constitute a 
     waiver of the President's attorney-client privilege, one must 
     accept the proposition that a privilege attaches to this 
     meeting in the first place. Given the presence of three 
     Government lawyers at the meeting--and the indication that 
     confidential law enforcement information may have been 
     improperly disclosed to the President's private lawyer--that 
     is a proposition that legal experts the committee has 
     consulted on the subject cannot accept.

  I think more importantly is his last paragraph that he points out to 
me:

       Given White House denials under oath to a House Committee 
     that a transfer of information to parties outside the White 
     House occurred, White House efforts to place limitations upon 
     the House's ability to gather information necessary to 
     fulfill its legitimate oversight function takes particular 
     chutzpah.

  I did not know that my colleague from Iowa would use a term that was 
frequently used in the Northeast, particularly in the Northeast. But--

       To date the White House has not consulted in any manner on 
     this issue with the House Banking Committee.

  I do not mean to be arguing the case on behalf of the House, but I 
think that what Congressman Leach is saying quite clearly is they are 
very much concerned that under oath, the question he raised, as it 
relates to the possible transfer of documents that would be 
inappropriate to be transferred, such as criminal referrals to people 
outside of the White House, being assured by Mr. Nussbaum that it did 
not take place, and it appearing that maybe it did take place, he is 
not willing to concede or give up or limit the ability of the House to 
proceed as related to what took place to those documents.
  That raises the question, a very interesting question, of whether or 
not even that relationship, which this Senator under most circumstances 
would say absolutely exists between a lawyer and his client may come 
into sharp contrast if information improperly received is passed to a 
private attorney, whether or not that private attorney may be examined 
as it relates to what he did, what he did not do, et cetera.

  I believe that that is--this is again outside of my particular 
knowledge--but it is certainly contained within this letter. And I 
think that is one of the things that Mr. Leach is concerned about.
  Again, coming back to our particular proposition, I will say to my 
friend and colleague, I think that you and I and the committee, 
Democrats and Republicans, the minority and majority, have really gone 
as far as we possibly could. And I do not think this is a failure on 
the part of the committee. We did put forth fact that we would not say 
that this constituted a waiver. That is not the issue.
  The issue is, when will you produce this documentation? As it relates 
to the independent counsel, we contacted him and the office of 
independent counsel has informed this committee that they cannot 
confirm or deny. So maybe they have worked it out. Obviously if the 
White House says that their objections have been met, I am not going to 
contest that. But they are not in a position to confirm or deny this 
statement, and an agreement has been reached.
  But once again what we are hearing is the White House and the 
President saying one thing, and he is willing to make these documents 
available, that ``I will not hide behind privilege,'' and yet doing 
exactly that. And that is what this Senator has difficulty 
understanding. We have gone, this committee and this Senate, as far as 
we can. We have made every reasonable effort, and that is what brings 
us to this point.

  I might note that in the five cases we have come forward as relates 
to the enforcement of subpoenas, in every one of those cases Congress 
has gone forward to enforce the subpoenas.
  I thank my friend for yielding. We just did get this communique, and 
I shared it with you as soon as we received it. I wanted to bring it to 
your attention.
  Mr. SARBANES. I am glad the Senator brought it to my attention, 
because it really does underscore the problem the White House is 
concerned about. In fact, Chairman Leach is wrong in asserting they 
would have limitations placed upon their ability to gather information, 
just as that is not happening to us.
  So the question then becomes, if you can get the notes which everyone 
asserts would provide an important piece of information, if you can get 
the notes and the condition you agree to for getting the notes is that 
the providing of the notes will not be treated as a general waiver of 
the lawyer-client privilege, which is a perfectly reasonable condition, 
it seems to me, why would you not enter into that arrangement? What is 
the problem? Why are the House committees taking this position? What 
game is afoot?
  It is not a reasonable position to take in the circumstance. They 
lose nothing by accepting the notes and agreeing to the condition. In 
fact, they get ahead of where they are now, because the notes then 
become available. They cannot use the furnishing of the notes to claim 
the privilege was waived somewhere else, but if the notes are not 
provided, they cannot make that claim elsewhere, in any event. So it is 
not as though this sets them back. This, in fact, makes some progress 
in the inquiry.
  I just do not understand this position, and it seems to me what this 
committee ought to be doing, frankly, is seeing if we cannot get the 
accommodation--well, I hear the statement from the independent counsel, 
and we 

[[Page S18946]]
would have to see what the story is there, but I understood that could 
be resolved in the direct communications and then with respect to the 
House. Then you get the notes and you do not intrude on the lawyer-
client privilege.
  This administration has provided an enormous amount of material and 
access. Of course, people say a long time ago, you made a quote 
everything would be provided and there would be no invocation of 
privilege. I was asked about that by a newspaper person the other day. 
They said, ``Well, what about that?"

  I said, ``Well, I'm sure when the President made that statement,'' 
and, in my view, he has delivered on it essentially, ``he never 
anticipated that we would get to the point where you would make a kind 
of a sweeping request that would carry the risk of totally wiping out 
his lawyer-client relationship.''
  Obviously, when he made that statement, it seems to me, he was 
assuming that the request that would come would be within the area of 
reasonableness and that he would not confront one that carried with it 
the very real risk of no more lawyer-client relationship.
  Obviously, when it reached that point, the President's lawyer said, 
``Wait a minute, the logic of this is that you will not be able to have 
any confidentiality in your relationship with your lawyer.'' Of course, 
then some say, ``Well, he doesn't need any, he should just tell 
everything.'' ``What do you have to hide?"
  But the logic of that argument is that you would never have any 
confidential relationship.
  In fact, when the committee sent letters down to the White House 
requesting various materials, we recognized in the letters that we sent 
that some of the material sought would be subject to claims of 
privilege. In fact, we told the White House, if that were the case, to 
provide a log identifying the date, the author, the recipient and the 
subject matter and the basis for the privilege.
  So this committee recognized at the outset that we could make 
interests for which a privilege could be asserted. We did not start 
from the premise that asserting a privilege was off bounds. We 
recognized it in the request that we made to the White House.
  We have had a tremendous number of depositions, witnesses. None of 
that has been impeded or inhibited. We have had 32 days of hearings. We 
have had about 150 people who have been deposed. We have had, I think, 
some 80 people who have been actually heard in open hearings.
  Virtually all of the differences have been resolved with respect to 
providing information. This one could be resolved. I want to underscore 
that point again: This one could be resolved.
  We are at the point where the White House, in effect, has said we 
will accept the conditions the committee was willing to validate to 
provide the notes. They are trying to find the same assurances from the 
independent counsel and from the House of Representatives. That is not 
unreasonable. In fact, I think that is very sensible. And, therefore, 
the opportunity is here, in effect, to resolve this matter, without 
going to the courts, without, in effect, running this risk of 
trespassing on this very important relationship.

  The chairman says, ``Well, you have turned over a lot of pages of 
documents,'' but that is not the relevant matter. Well, it is partly 
relevant. They have turned over an incredible amount of material. The 
committee has worked through it. It constitutes the basis for our 
questioning. The committee has now focused on the notes of this meeting 
and has said, ``We want the notes of those meetings.''
  Originally, the position that was taken by Mr. Kendall was, ``Well, 
you can get that information in a different way without actually 
getting the notes.''
  The majority said, ``Well, we don't accept that. We want the notes.'' 
The White House now has made a bona fide offer to provide the notes 
with certain assurances. This committee is prepared to give those 
assurances.
  So if we were the only forum in which this issue might arise about 
the waiver, there would be no problem if the committee was the only 
forum. But the fact is there are other forums, and I think the White 
House reasonably says if we give the notes to this special committee, 
others will argue in those other forums that this constitutes a waiver; 
therefore, we want assurances there as well--the independent counsel 
and the House committees.
  It is a perfectly reasonable request. My own view is, frankly, that 
the committee ought to take a more positive role and, in effect, bring 
these parties in and say, ``Let's resolve this matter without a 
constitutional confrontation.'' It is obvious that it can be done, and 
that is the course we ought to take. That, in effect, would provide the 
information far, far sooner than going to court will provide the 
information, and it will meet, I think, a very reasonable concern on 
the part of the White House that there is a general waiver of the 
lawyer-client privilege.
  I would be surprised if there were Members of this body who thought 
there should be a general waiver of all lawyer-client relationships.
  That is not the way the Senate has acted in the past. It is not the 
position we have taken. It was clearly not the position we took with 
respect to witnesses before our very committee. It was not the position 
the Senate took in the Packwood matter. I can run on back through 
history with respect to the decision to accord a certain respect to the 
lawyer-client relationship.
  So, Mr. President, I think it is important that the Senate shift its 
attention to resolving this matter without a constitutional conflict. 
In my view, that is within reach, and we ought to be engaged in the 
process of trying to bring that about. That would be a solution that 
would provide the information, protect against the general waiver. That 
is something this committee is prepared to do. I understand it is 
something the independent counsel is prepared to do. If our colleagues 
in the House were prepared to do it, this confrontation would be set 
aside and this issue would be resolved.
  I yield the floor.
  Mr. BENNETT addressed the Chair.
  The PRESIDING OFFICER (Mr. Gregg). The Senator from Utah is 
recognized.
  Mr. BENNETT. Mr. President, I have listened with interest to my 
colleague from Maryland. We have discussed many of these issues in 
committee already, but I think it is necessary that we talk about them 
here on the floor.
  Let me state to my colleague, and any other colleagues who may be 
listening, that I will stand absolutely with the Senator from Maryland 
to protect the attorney-client privilege in every circumstance, whether 
it regards the President of the United States, any citizen of the 
United States, or a convicted felon who is incarcerated by the United 
States. Wherever you wish to go where there is a legitimate attorney-
client privilege, this Senator will stand to protect that privilege.
  That is not an issue here. The President has the right to the 
attorney-client privilege. The President has the right to consult his 
attorneys on matters relating to his personal affairs, with the 
absolute assurance that no committee of Congress will ever intrude upon 
that consultation, and that no one will ever do anything that would 
weaken that right. It is one of the more fundamental rights established 
in American common law, and it must be protected.
  I make that strong statement so that people will understand that the 
issue here is not the President's right to an attorney, or the 
President's right to protect the attorney-client privilege. The issue 
here is whether or not Government attorneys, paid for by the taxpayers, 
attending a meeting with the President's private attorneys, discussing 
matters that did not impact the Presidency, matters that took place 
prior to the President's election, have the same attorney-client 
privilege.
  I am troubled by the number and type of people who attended the 
meeting with the President's private attorneys. This was a matter of 
discussing the President's private legal problems, so why was it 
necessary for four members of the White House staff to be present at 
this discussion, one of whom, though he has graduated from law school 
and has practiced as an attorney, at the time of his attendance, was 
not involved in legal matters for the White House. He was the head of 
White House personnel. He was not functioning in his capacity as an 
attorney when he attended that meeting. 

[[Page S18947]]

  I recall, Mr. President, when the office of counsel to the President 
was occupied by a single individual. It was not necessary for the 
President of the United States to have a substantial law firm operating 
under the cloak of ``counsel to the President,'' paid by the taxpayers, 
handling the President's personal affairs.
  If I may, I will go all the way back to an era, which I realize has 
passed and cannot be reclaimed, to find an example and use it as an 
example of the kind of separation between personal affairs and private 
affairs that we once had. Harry Truman, as President of the United 
States, kept a roll of 3-cent stamps in his desk. Whenever he wrote a 
letter to his mother, which he did almost daily, he would reach into 
his desk and pull out the roll of 3-cent stamps, lick the stamp himself 
and put it on the envelope because, he said, ``Letters to my mother are 
not public business and, therefore, I will pay the postage myself.'' I 
realize we have come a long way from that point, and I would not expect 
the President of the United States to take the time now to say in his 
correspondence, ``Well, I must pay the postage on this one,'' or ``I 
will not pay the postage on that one.'' All of us in official life are 
so beset with correspondence that we never know whether the answer to a 
letter is a response from our official capacity or our private 
capacity. We pay for our Christmas cards ourselves, but much of the 
correspondence that comes out of our office could easily fall into 
either category.
  But it is the mindset that there must be a separation between private 
affairs and public affairs that I want to appeal to. Here is a 
President who appoints--as it is his perfectly legitimate right to do--
as deputy White House counsel a man whose principal activity in the 
White House turns out to be handling the Clintons' personal affairs--
Vincent Foster, the focus of all of this investigation--who made 
himself the focus by virtue of his tragic suicide. He spent most of his 
time handling the Clintons' tax matters, the Clintons' investment 
matters, the Clintons' personal affairs. That came out in our hearings, 
as one of the support people on the White House staff--a secretary--was 
sufficiently concerned about the amount of time Mr. Foster was spending 
on nonpublic issues that she went to the general counsel for the 
President, Mr. Nussbaum, and asked the question, ``Is this a legitimate 
thing for Mr. Foster to be doing while being paid by the taxpayers?'' 
She made the comment that she, as a long-time employee of the White 
House counsel's office, had never seen anything like that being done in 
previous Presidencies. Specifically, she referenced the Bush 
Presidency. She was told that it is up to the counsel, Mr. Nussbaum, to 
make the decision as to what is appropriate and what is not in terms of 
time allocation, and as long as Mr. Nussbaum says that it is all right 
for Mr. Foster to spend the majority of his time handling the Clintons' 
personal affairs, that means it is all right for Mr. Foster to spend 
the majority of his time handling the Clintons' personal affairs.
  I raise this because it is at the core of the controversy we find 
ourselves in. The Clintons obviously believe that anyone who works for 
the counsel to the President immediately becomes subject to the 
Clintons' private attorney-client privilege. If Mr. Foster was spending 
his time doing the Clintons' personal tax affairs, I think the case 
could be made that those tax matters could be covered by the attorney-
client privilege. I certainly hope that my consultation with my 
attorney on tax matters is covered by the attorney-client privilege, if 
anybody should ever challenge me. And if I use Government lawyers to do 
that--I have not and will not--I guess the presumption in my mind would 
be that even though they are paid by the taxpayers, because they are 
doing this personal work for me, the work would be covered by the 
attorney-client privilege if they were private attorneys, so it should 
be covered by the attorney-client privilege now that they are public 
attorneys.
  Let me digress, Mr. President, long enough to make the point that all 
of us in our official capacities do indeed have to call upon Government 
employees from time to time to advise us on private activities that 
impinge upon our public circumstance.
  For example, when I was called upon to put my assets in a managed 
trust by virtue of my election as a Senator, I turned to the attorney 
in my Senate office who is familiar with Ethics Committee positions and 
requirements and asked him for advice as to how this should be done. I 
would expect those conversations to be covered by the attorney-client 
privilege as I discuss with him matters of some confidentiality.
  The trust has been formed, the assets have been placed there, and 
documents have been filed with the Ethics Committee disclosing all of 
that. That is an example where I have a matter of personal concern that 
I discuss with an attorney who is on the payroll because he is in a 
position to advise me as to how my personal affairs impact in a public 
arena; in this case, the Senate Ethics Committee and the filings we are 
required to make here.
  Accordingly, if the President were to turn to a member of the counsel 
to the President's office and say, ``I have a matter that stems from my 
personal affairs but that impacts on my public duties. I would like you 
to counsel me on those affairs, and I would expect that your counsel 
would fall within the attorney-client privilege.'' I have no argument 
with that.
  The argument here is a meeting where the President's personal 
attorneys, concerned with actions that took place prior to his becoming 
President, concerned with allegations about impropriety if not 
illegality in those matters, holds a meeting with four employees of the 
White House to discuss those matters, and then says, ``Those employees 
of the White House are covered by attorney-client privilege, the same 
as we are.''
  I find that a bit of a stretch, Mr. President. I made the point in 
the committee that there must be a dividing line somewhere between the 
President and Government employees. If you say, ``No, there is no such 
dividing line,'' you can then go to the point of saying any attorney 
who works for the executive branch anywhere in the executive branch 
can, by the President's direction, be covered by attorney-client 
privilege. Obviously, nobody would say that is common.
  Where does the line move back to? Does the President have attorney-
client privilege just with the counsel to the President? Does the 
President have personal attorney-client privilege with everyone in the 
counsel to the President's office no matter how large it gets? I am 
alarmed at how large it is getting. I remember when a President needed 
only one lawyer. If he wanted a legal opinion on something other than 
his own direct office matters he called the Attorney General. We are 
getting away from that now. We have a whole law firm under the title of 
counsel to the President. It seems to be supplanting the Attorney 
General in the role of advising the President on legal matters. That is 
another issue.
  I think the line must be drawn as tightly to the President as 
possible. The President obviously thinks the line should be drawn as 
far away from him as possible. That is where the controversy for this 
Senator arises on this issue.
  I am happy to exchange with my friend, the Senator from Maryland, in 
any colloquy or exchange, as long as I do not lose my right to the 
floor.
  The PRESIDING OFFICER (Mr. Santorum). Without objection, it is so 
ordered.
  Mr. SARBANES. First, let me say I think the Senator has made a very 
reasoned statement about the matter. Let me simply say when Mr. Roger 
Adams was before the committee, he is a career person in the Department 
of Justice, and he is sort of the one who gives advice on Government 
ethics to attorneys in the Department of Justice. That is his 
specialty. He was asked about Foster doing private law work for the 
President and Mrs. Clinton. He says, ``That doesn't surprise me a bit. 
There is a thin line between public business and private business and 
it does not offend me at all that the counsel or deputy counsel to the 
President does work on some personal things of the President and the 
First Lady.''
  Just as the Senator indicated you might have a member of your staff, 
suppose you are doing your disclosure statement----
  Mr. BENNETT. Precisely, and I have no problem with that. I do have a 
personal problem, whether it is legal or not, with the extent to which 
this 

[[Page S18948]]
President seems to use this White House staff. I am entitled to that 
concern.
  Mr. SARBANES. When Lloyd Cutler took over as White House counsel he 
raised that and apparently changes were made in the workings of the 
White House to more clearly draw the line between personal and public 
matters.
  Mr. BENNETT. I have Lloyd Cutler's statement to that effect, if the 
Senator would like to hear it.
  Mr. SARBANES. I think he was on point with that.
  Let me go a step further on this question about this particular 
meeting and your observations about the extent of it which apparently 
causes you to question whether the lawyer-client privilege applies to 
it. Of course that, ultimately, if we press forward will be resolved by 
a court.
  Let me just read this letter from Geoffrey Hazard, a very 
distinguished legal scholar, professor of law at the University of 
Pennsylvania, and he travels all over the country talking about these 
very problems. This was a letter to the White House counsel.

       You have asked my opinion whether the communications in a 
     meeting between lawyers on the White House staff, engaged in 
     providing legal representation, and lawyers privately engaged 
     by the President are protected by the attorney-client 
     privilege. In my opinion, they are so protected.

  The facts, in essence, are that a conference was held among lawyers 
on the White House staff, and lawyers who had been engaged to represent 
the President personally. The conference concerned certain transactions 
that occurred before the President assumed office but which had 
significance after he took office. The Governmental lawyers were 
representing the President ex officio. The other lawyers were retained 
by the President to provide private representation to him. On this 
basis, it is my opinion that the attorney-client privilege is not 
waived or lost.

       A preliminary question is whether the attorney-client 
     privilege may be asserted by the President, with respect to 
     communications with White House lawyers, as against other 
     departments and agencies of Government, particularly Congress 
     and the Attorney General. There are no judicial decisions on 
     this question of which I am aware. However, Presidents of 
     both political parties have asserted that the privilege is 
     thus effective.
       This position is, in my opinion, correct, reasoning from 
     such precedents as can be applied by analogy. Accordingly, in 
     my opinion, the President can properly invoke attorney-client 
     privilege concerning communications with White House lawyers.

  Then he goes as he draws toward a close:

       The principal question, then, is whether the privilege is 
     lost when the communications were shared with lawyers who 
     represent the President personally. One way to analyze a 
     situation is simply to say that the ``President'' has two 
     sets of lawyers, engaged in conferring with each other. On 
     that basis there is no question that the privilege is 
     effective. Many legal consultations for a client involve the 
     presence of more than one lawyer.
       Another way to analyze the situation is to consider that 
     the ``President'' has two legal capacities, that is, the 
     capacity ex officio--in his office as President--and the 
     capacity as an individual. The concept that a single 
     individual can have two distinct legal capacities or 
     identities has existed in law for centuries. On this 
     basis, there are two ``clients'', corresponding to the two 
     legal capacities or identities.
       The matters under discussion were of concern to the 
     President in each capacity as client. In my opinion, the 
     situation is, therefore, the same as if lawyers for two 
     different clients were in conference about a matter that was 
     of concern to both clients. In that situation, in my opinion 
     the attorney-client privilege is not lost by either client.
       The recognized rule is set forth in the Restatement of the 
     Law Governing Lawyers, Section 126 (Tent. Draft No. 2, 1989), 
     as follows:
       If two or more clients represented by separate lawyers 
     share a common interest in a matter, the communications of 
     each separately represented client . . .
       (1) Are privileged against a third person. . .
       Inasmuch as the White House lawyers and the privately 
     engaged lawyers were addressing a matter of common interest 
     to the President in both legal capacities, the attorney-
     client privilege is not waived or lost as against third 
     parties.

  Now, as he said, it has never been adjudicated in a court. It could 
be decided differently. But this is a leading expert, and I think that 
is a very strong letter with respect to this matter.
  Mr. BENNETT. I understand. I agree he is a leading expert. And it is 
a very strong letter.
  I also note, however, as you have, that the matter has not been 
adjudicated in a court, and I think that may well argue strongly for us 
to proceed and allow the court to so adjudicate, because if we solve 
these matters by getting legal opinions on opposite sides and then 
reading the opinions to each other, we do not need courts. The courts 
exist to take the legal opinions on one side and the other and listen 
to them and make a decision. Many of those decisions, as the Senator 
well knows, are decided on a five-to-four vote, with strong letters 
from real experts ending up on the side of the four, sometimes, when it 
goes to the Supreme Court, and the strong letters from real experts 
ending up, sometimes, on the side of the five.
  I have heard from distinguished commentators, lawyers of sufficient 
reputation to require us to pay attention to their views, that the 
President, in this case, has little or no grounds to stand on. The 
lawyer you have just quoted obviously disagrees with those opinions. I 
think that is why we have courts. It may be that this matter is 
important enough to be resolved once and for all, and the way to get it 
resolved is to proceed with the subpoena and let the court hear the 
matter.
  Mr. SARBANES. Will the Senator yield?
  Mr. BENNETT. Sure.
  Mr. SARBANES. If the reason you are proceeding is in order to get the 
notes, and if the notes can be made available under what I regard as 
perfectly reasonable conditions, why should we provoke a court 
controversy on this matter?
  Mr. BENNETT. If I may respond to the Senator, quoting comments he 
made in his opening statement, he said, ``There has been a lot of 
movement here.'' I agree with him, that there has been some movement 
here. But it is my observation that the movement has always come after 
the committee has decided to get tough, that the movement on this issue 
has come after the chairman said, ``We are going to issue a subpoena. 
We are going to go to the floor. We are going to demand Senate 
action.'' That is when the movement started to come.
  So when the Senator from Maryland says if it is my purpose to get the 
notes, we can drop this and get the notes through other means, I say to 
the Senator, I would be willing to drop this as soon as the notes 
appear. I would be willing to vacate the order for a subpoena as soon 
as the notes appear, and not provoke this kind of confrontation. But 
until the notes come along, the pattern of behavior that I have seen on 
the committee says to me the best way to keep the movement going is to 
keep the pressure on.
  Mr. SARBANES. If the Senator will yield?
  Mr. BENNETT. I will be happy to yield.
  Mr. SARBANES. First of all, it is my view, as I indicated also in my 
remarks, that the White House has been trying to reach an 
accommodation, and to some extent I think the confrontation was 
provoked by the committee.
  But putting that to one side, we are now at the point where the 
proposition that we are wrestling with is pretty simple. That is, if 
the White House can get the same assurances from the independent 
counsel and the House that it has gotten from our committee with 
respect to this waiver question, they are prepared to provide the notes 
at once. We obviously thought that the conditions were reasonable in 
dealing with the White House on this matter, because we have agreed to 
them.
  I think it is reasonable for the White House then to say that we 
ought not to be blind-sided or whipsawed on this thing, by other 
investigatory bodies, in other forums. And, therefore, we need to get 
from them the same or comparable assurances.
  As I understand it--I do not have anything definitive--but I am told 
that this matter has been worked out with the independent counsel. Of 
course, assuming that is the case, that itself is a further major step 
forward. Then it just, apparently, now leaves us with a question of the 
House of Representatives.
  Mr. BENNETT. If I could respond to the Senator? I agree. If, in fact, 
the independent counsel has made this 

[[Page S18949]]
agreement, that is a significant step forward. He says that leaves only 
the House with which to deal. I am glad to know that, because the 
original condition that was sent to the committee had other agencies 
besides the independent counsel and the House. It had the RTC and the 
FDIC. I am assuming from the Senator's statement that means the White 
House has now dropped the demand that those people also have a veto 
power on whether or not the notes will be given to us?
  Mr. SARBANES. Let me just read a letter from the White House counsel 
to Chairman D'Amato. A copy was sent to me.
  Mr. BENNETT. Absolutely.
  Mr. SARBANES. It said:

       Dear Chairman D'Amato, As I informed you yesterday we 
     would, Counsel for the President have undertaken to secure 
     nonwaiver agreements from the various entities with an 
     investigative interest in Whitewater-Madison matters. I 
     requested an opportunity to meet with your staff to determine 
     how we might work together to facilitate this process. Mr. 
     Chertoff declined to meet.
       Nonetheless, we have succeeded in reaching an understanding 
     with the Independent Counsel that he will not argue that 
     turning over the Kennedy notes waives the attorney-client 
     privilege claimed by the President. With this agreement in 
     hand, the only thing standing in the way of giving these 
     notes to your committee is the unwillingness of Republican 
     House Chairmen similarly to agree. As I am sure you are 
     aware, two of the Committee Chairmen who have asserted 
     jurisdiction over Whitewater matters in the House have 
     rejected our request that the House also enter a non-waiver 
     agreement with respect to disclosure of these notes and 
     related testimony.
       We have said all along that we are prepared to make the 
     notes public; that all we need is an assurance that other 
     investigative bodies will not use this as an excuse to deny 
     the President the right to lawyer confidentiality that all 
     Americans enjoy. The response of the House Committee Chairmen 
     suggests our concern has been well-founded.
       If your primary objective in pursuing this exercise is to 
     obtain the notes, we need to work together to achieve that 
     result. You earlier stated that you were willing to urge the 
     Independent Counsel to go along with a non-waiver agreement. 
     We ask that you do the same with your Republican colleagues 
     in the House. Be assured, as soon as we secure an agreement 
     from the House, we will give the notes to the Committee.

  Mr. BENNETT. If my colleague will yield----
  Mr. SARBANES. Let me read the last paragraph because it is important 
to keep this thing current.

       Mr. Chertoff has informed me that the Committee will not 
     acknowledge that a reasonable claim of privilege has been 
     asserted with respect to confidential communications between 
     the President's personal lawyer and White House officials 
     acting as lawyers for the President. In view of the 
     overwhelming support exercised by legal scholars and experts 
     for the White House position on this subject, we are prepared 
     simply to agree to disagree with the Committee on this point.
       Accordingly, the only remaining obstacle to resolution of 
     this matter is the House.

  So that is where the matter now stands.
  Mr. BENNETT. I thank the Senator for that. It represents, in this 
Senator's view, a significant movement on the part of the White House 
from the position taken less than a week ago, when the same Jane 
Sherburne gave us five conditions, two of which the majority on the 
committee had recommended to her, and the other three of which many 
members of the committee found to be unacceptable.
  The two most objectionable of those conditions that she placed on 
giving up the notes, Nos. 4 and 5, in her correspondence of the 14th of 
December have been dropped from the letter that the Senator from 
Maryland just talked about. There is no relevance.
  Mr. SARBANES. If the Senator will yield, 4 and 5 have been dropped; 4 
is still relevant because that involves trying to get those assurances 
from another investigatory body.
  Mr. BENNETT. No. 4 has been dropped as proposed. It has been 
replaced, in my view, with the request that the House now be involved 
because she wanted the House involved in No. 4 in the original letter. 
It represents movement. But I think the tenor of No. 4 has, in fact, 
been dropped and replaced by the acceptance on her part of taking just 
the House. We no longer have any references to the Resolution Trust 
Corporation and its successor and the Federal Deposit Insurance 
Corporation, which were for this Senator the two most difficult 
requirements that the White House had placed. So we have had movement. 
We have had significant movement. We have seen that movement come in 
response to the pressure created by the requirement for this subpoena.
  The only other comment I would make with respect to Ms. Sherburne's 
letter of the 20th that the Senator from Maryland has just quoted is a 
personal disagreement with the opening clause in her sentence in 
paragraph 3 when she says, ``We have said all along that we are 
prepared to make the notes public.'' That does not coincide with this 
Senator's memory of the way the White House has proceeded. I will take 
the notes. I will read the notes as soon as they are provided. But I 
personally do not agree that the White House has indeed said all along 
that they are prepared to make the notes public. As I have said, I 
believe they have responded as the committee has gotten tough, and they 
are now saying things that in fact do not coincide with this Senator's 
memory of history.
  If I can proceed then, Mr. President, if my colleague from Maryland 
is finished with the colloquy on this issue, I want to make some 
general points about why it is necessary for the committee to continue 
this somewhat militant stance that we have taken. I have been 
interested to watch this thing unfold as covered by the media.
  If we were to go back to the beginning of the hearing, the reaction 
on the part of people covering this issue was that it was, frankly, a 
gigantic yawn and nothing for anybody to pay any attention to, nothing 
for anybody to get very excited about. I will not go back with a 
quotation trail beyond the month of December. But someone who wants to 
do a historical pattern of this could follow the pattern of media 
comments from the summertime on through the fall and then into December 
and see that people are beginning to pick up in their understanding, 
pick up in their concern about this. And, interestingly enough, it has 
come not just from the media that one would automatically assume would 
be favorable to the Republican point of view, but it has come from 
sources that have been traditionally, shall we say, somewhat skeptical 
of Republican positions.
  In this month alone, Mr. President, starting toward the first of the 
month we have the following paper trail, if you will, from some of the 
leading papers in this country.
  The New York Times on the 6th of December with the lead editorial 
entitled ``Whitewater Evasions, Cont.'' That is an interesting lead, an 
interesting title for an editorial. ``Whitewater Evasions, Cont.'' The 
Times has had previous editorials on Whitewater evasions, and they talk 
about it.
  The final sentence of the editorial says, ``* * * what we are left 
with is a portrait that grows cloudier by the day of an administration 
that always dodges full disclosure.''
  I suggest that comment by the New York Times corresponds with my 
response to the Senator from Maryland about the latest White House 
letter that says ``We have said all along that we are prepared to make 
the notes public.''
  On the 7th of December, the next day, the Washington Post has an 
editorial entitled ``The White House Mess.'' This editorial states 
``And the conflicting statements keep coming. That is the problem. Ms. 
Williams told the Senate Whitewater Committee this summer that she has 
given the Clintons' lawyer access to some 24 files found in Mr. 
Foster's office that contained personal matters of the Clintons. But 
she did not say that she was with him when he reviewed the files or 
that the review occurred in the first family's residence, as he now 
maintains.'' The editorial continues with the specifics of that 
particular comment.
  How does this editorial conclude following on the editorial of the 
New York Times? ``Has the White House, through these twists, managed to 
throw suspicion over matters of little consequence, or is there 
something serious being covered up? The question is everywhere these 
days, in large part because of all of the improbable and implausible 
responses that have been made to inquiries so far. If the White House 
can clear them up, it surely should. Congress and the independent 
counsel are clearly not going to let things stand as they are now.''
  That was the Washington Post on Pearl Harbor day, the 7th of 
December. 

[[Page S18950]]

  We go on to the 12th of December. The New York Times again, in an 
editorial entitled ``Traveling Whitewater Files,'' talks about the 
mysterious movement of files back and forth from closet to attorneys' 
offices and back to attorneys with occasional stops at basements of 
other attorneys. And it concludes with the point we have been 
discussing at such length here this morning, Mr. President. ``To be 
sure, citizen Bill Clinton is entitled to litigate all he wants and to 
claim whatever privacy the courts will give him. But President Clinton, 
the politician and national leader, cannot expect the public to be 
reassured by mysteriously mobile files and promises of openness that 
disappear behind the lawyer-client veil.''
  Then we go on. We get closer to today. On the 14th of December, the 
Washington Post has an editorial entitled ``Now a Subpoena 
Controversy.'' It begins, ``In refusing to honor a Senate Whitewater 
Committee subpoena for notes taken by then-White House associate 
counsel William Kennedy during a November 5, 1993, meeting between 
White House officials and the Clintons' attorneys, the administration 
risks traveling down a familiar dead end.''
  The Washington Post apparently is losing patience.
  The final comment of this editorial is: ``The overriding interest is 
to get at the truth. If, however, a satisfactory solution cannot be 
reached, then the courts must decide. It shouldn't have to come to 
that.''
  Apparently, the lawyers that advise the editorial writers for the 
Washington Post are not as easily convinced as the lawyers who have 
sent their opinions to the Senator from Maryland.
  Just yesterday, in the New York Times again, the editorial is headed 
``Averting a Constitutional Clash.'' And I quote: ``If Mr. Clinton 
relinquishes the documents, it would be a positive departure from the 
evasive tactics that have marked the Clintons' handling of questions 
about Whitewater since the 1992 campaign.''
  ``Mr. Clinton's assertion that the subpoenaed material is protected 
by lawyer-client privilege, and his quieter claim of executive 
privilege, are legally dubious and risk a damaging precedent.''
  Now, I cannot argue that the New York Times is as distinguished a 
legal source as the lawyer who gave the opinion that the Senator from 
Maryland quoted, but again the lawyers who advise the editorial writers 
in the New York Times must have looked at this and they find it, to 
quote, ``Legally dubious, risking a damaging precedent.''
  Mr. D'AMATO. Will my colleague yield----
  Mr. BENNETT. Yes, I will be happy to yield.
  Mr. D'AMATO. Just for an observation. Given the posture which the 
White House has taken and given the difficulty we have had in getting 
documents or information, given the dubious claim as it relates to 
lawyer-client privilege, is it not even harder for us, the committee, 
to accept this claim in light of the President's public statements as 
it relates to not raising privilege as a manner by which to protect 
documents? Does this impact on the Senator?
  This is a statement that comes from the President on March 8, 1994, 
when he is appointing Lloyd Cutler, and the question was, was he going 
to invoke Executive privilege or a lawyer-client relationship 
privilege, and he ends up with, as his answer, he says, ``It's hard for 
me to imagine circumstances in which that would be an appropriate thing 
for me to do.''
  Does this square then, Ms. Sherburne raising this, with what the 
President has said, that he would not--it is hard for him to imagine 
raising that privilege?
  Mr. BENNETT. The Senator is correct to raise that quote in this 
context. It simply demonstrates that there are now some circumstances 
that the President was unable to imagine that long time ago because he 
has now asserted the privilege and we confront it.
  Mr. D'AMATO. The meeting took place. He was aware of this meeting, 
obviously.
  Mr. BENNETT. I believe he was aware of the meeting.
  Mr. D'AMATO. This meeting took place well before, in November, and he 
made the statement in March. So he was aware of the meeting. It was not 
a circumstance that took place after the meeting.
  Mr. BENNETT. I do not wish to be flippant about these matters because 
they are important matters, but I find myself saying the lapse of 
memory seems to fit a pattern that we have seen from other people in 
the White House.
  Mr. D'AMATO. I thank my friend.
  Mr. BENNETT. Mr. President, going back to the editorial in the New 
York Times of yesterday, after they made the statement that I have 
quoted about the legally dubious claims, they conclude that editorial 
with this comment cutting straight to the issue that we are talking 
about today on the floor:

       It should still be possible to make arrangements before 
     tomorrow when the Senate is due to take up the matter. If 
     not, the Senate has no choice but to vote to go to court to 
     enforce the committee's subpoena.

  Now, I have gone to the trouble of quoting all of these editorials 
leading up to this to indicate that this is not a sudden decision on 
the part of the editorial writers of the New York Times or I would 
assume the Washington Post, whose stream of editorials has gone the 
same way. As I say, I have not quoted from all of the papers that have 
been considered to be Republican friendly. I have quoted from papers 
that would normally be expected to take the President's side on this 
issue, and I find it somewhat interesting that the leader of those 
papers concludes its editorial by saying that the Senate has no choice 
but to vote to go to court and enforce the committee's subpoena. I see 
my friend from Connecticut rising.
  Mr. DODD. Will my colleague yield?
  Mr. BENNETT. Under the same procedure, Mr. President, that it is 
understood I would not lose my right to the floor, I will be happy to 
engage in whatever colloquy and debate my friend from Connecticut may 
desire.
  Mr. DODD. I thank my colleague from Utah, Mr. President.
  I just ask my colleague if he could enlighten us on whether the media 
have ever taken a position, on any matter where access to documents was 
the issue, they should not have total access to everything they want?
  Going back over time, when the issue was attorney-client privilege or 
executive privilege, can the Senator cite to me an editorial from the 
New York Times or the Washington Post or any other paper where the 
paper did not think they ought to have unfettered access to documents? 
My point is that the media always want all of the documents. So we 
should expect to see the editorials my colleague cites.
  Does my colleague disagree with me that, unlike legal scholars who 
look at constitutional issues, the press always takes the position that 
materials should be turned over?
  Mr. BENNETT. I have not done that kind of research. I will go back 
and take a look at the past media circumstance. It is my impression 
that no one has called for breaching the attorney-client privilege for 
the President or anybody else; that the concern here has to do with 
whether or not that privilege extends to Government lawyers. I do not 
know of anybody in the media who would say that if the meeting was 
confined entirely to the President and the lawyers who had been hired 
by him and are being paid by him to represent him in his personal 
matters, the notes should be turned over. I have not had anybody say 
that to me. The issue is whether or not the presence of Government 
lawyers at the meeting so changed the nature of the meeting as to make 
it appropriate for the committee to ask for those notes.
  So I understand the point that my friend from Connecticut is making, 
and I am sure that he is correct in terms of the institutional bias of 
the press. I would stop short of saying that it applies to violating 
all kinds of privilege. I think it applies to the narrow issue here as 
to what happens by virtue of the Government lawyers having been 
present.
  Mr. DODD. Let me further inquire. I appreciate my colleague's 
generosity in allowing me to inquire. As I understand this particular 
point, we are down to basically one problem that stands in the way of 
an agreement--we need the House to agree that the release of the notes 
by the White House will not constitute a general waiver of the 
attorney-client privilege. That seems like a small problem to work 

[[Page S18951]]
out. Clearly, we would all like to avoid having to take this matter to 
the courts. After all, precedent suggests they may just throw it back 
in our lap and say ``resolve it.'' So we spend 2 months on this issue 
and we are back where we started.
  Mr. BENNETT. Two months, if we are lucky.
  Mr. DODD. My colleague from Utah is probably correct. As I understand 
it, the independent counsel has already reached an agreement with the 
White House. It occurs to me that if the independent counsel, which has 
a prosecutorial function, can reach an agreement, than the 
congressional committees, whose fundamental function is legislative, 
should also be able to reach an agreement. If the independent counsel 
is satisfied with the agreement, then we should also be able to reach 
an agreement.
  I am just curious as to why it would not be in our interest to take 
some time to have the conversation with our colleagues in the other 
body who are apparently resisting this to see if we can work out an 
agreement and put this issue behind us.
  Is there some compelling reason why we ought not try to do that? If 
the independent counsel said this is totally unacceptable, I need the 
subpoenas, I can almost understand at that point why we would have to 
go through this process. But that is not the case. I ask my colleague 
if he would not agree with that.
  (Mr. KYL assumed the chair.)
  Mr. BENNETT. I say to my colleague that I would be happy to sit down 
with him if it were just the two of us and see if we could arrive at an 
agreement on that point. I have learned long since, even though I am a 
relatively new Member here, not to try to guess what the House will do 
under any circumstance.
  Mr. DODD. My colleague has become very wise in the few years he has 
been here.
  Mr. BENNETT. So I would not presume to try to give instructions to my 
colleagues in the House. But I think it is appropriate that we have 
these kinds of conversations. I think the Senator from Connecticut 
raises a very logical course of action that we should consider.
  But I am not prepared to remove the pressure that the existence of 
this vote creates toward getting a solution because, as I said to the 
senior Senator from Maryland, in my opinion, the movement to which he 
refers would not have taken place if the committee had not taken the 
tough stance that it has taken.
  The movement that we have seen in the White House position in just 
the last 24 hours, I believe, is attributable to the pending vote that 
we are going to take. If we take the vote and the White House and the 
House can come to some kind of a conclusion, then the subpoena called 
for in this vote is rendered mute and the matter is taken care of. But 
I would rather not remove the pressure that this vote represents until 
after the agreement is reached because I believe that the pressure of 
this vote has had a salutary effect in moving us toward that.
  Mr. DODD. I thank my colleague for the time he has given.
  Mr. BENNETT. Mr. President, I had not planned to go on this long.
  Mr. SARBANES. Would the Senator yield on this point? I think there is 
a chance, once the vote is taken and the matter is sent to the court, 
then the people may say, ``Well, let the court decide it.'' And if the 
court decides it, first, you do not know what opinion you will get. 
That is, people make their reasonable calculations. Second, the 
timeframe then becomes quite extended.
  It seems to me, given all the admonitions about trying to avoid a 
confrontation between the executive and the legislative branches, it 
would behoove us to do that because I think we are at a point right now 
where that opportunity is right here in front of us.
  Mr. BENNETT. The Senator has raised a possibility which may indeed 
turn out to be the outcome. The matter becomes a matter of judgment as 
to which scenario you believe is the one that will play out, the one I 
have posited or the one that the Senator from Maryland has posited. And 
we will all have to vote and see which of those two scenarios is the 
one that comes about.
  Mr. President, I had not planned to go on this long. I will be happy 
to yield again to my colleague from Connecticut, but I would like to 
wrap up.
  Mr. DODD. I will seek recognition later in my own right. I thank my 
colleague.
  Mr. BENNETT. I thank the Senator.
  Mr. President, before I leave the quotations from the media, I must 
share with my colleagues one last editorial which comes from a source 
that is clearly not generally favorable to Republican positions, from a 
man whose writings I am not familiar with. However, I can catch the 
flavor of his position simply from reading this particular editorial. 
His name is James M. Klurfeld. He is the editorial page editor for 
Newsday. I will just quote a few comments, but I think it summarizes 
what is happening on this issue.
  He says:

       I have to admit that I haven't paid that much attention to 
     the Whitewater investigation. That is not only because it's 
     too complicated to figure out, but also because an essential 
     element of any real scandal is missing: the anticipation that 
     the high and the mighty are about to be brought down. There 
     has been, to be blunt, no scent of blood. Until now.

  Mr. Klurfeld then goes on to recite some of the specifics of what has 
come up. He says:

       At the crux of the Whitewater investigation is whether they 
     knowingly got money from the Whitewater-related projects and 
     mixed it illegally with campaign money for a gubernatorial 
     re-election campaign. That case has not been made. But there 
     has always been a second Whitewater issue: whether the 
     Clintons have abused the power of the White House to obstruct 
     the investigation. And here things begin to look more 
     troubling. There are credible allegations of files removed 
     from the White House, of improper interference with the 
     investigation of Foster's death and, most recently, the White 
     House has refused to give memos of conversations involving 
     the Whitewater matter to the Senate committee, first claiming 
     lawyer-client privileges and now invoking the doctrine of 
     executive privilege.

  He continues later on in the article:

       What keeps nagging at me is that if my first assumption is 
     true--that there is no criminal wrongdoing involved in the 
     matter--then why is the White House and Hillary Clinton, in 
     particular, so reluctant to come clean about everything? What 
     does she have to hide? Why not just open all the files? After 
     all, Hillary Clinton worked as an investigator on the 
     Watergate matter. We all know she as smart and as sharp as 
     any lawyer in Washington, let alone Little Rock. She knows, 
     as we all know, Richard Nixon got caught up by the coverup of 
     Watergate, not the burglary itself. It is inconceivable she 
     would blunder into the same type of mistake. Unless, of 
     course, there is something to hide. Then a cover-up makes 
     sense, at least from her point of view.

  Once again we find a pattern. Mr. President, I quote the summary 
sentence. Mr Klurfeld says:

       There are enough unanswered questions and White House 
     evasions to justify further investigation. And I am ready to 
     pay some attention to it.

  The one area that has struck me as I have listened to this whole 
thing, that for some reason reached out and grabbed my attention, 
concerns the law firm records relating to Mrs. Clinton's billing for 
her services to Madison Guaranty. This first came up, Mr. President, 
when Mr. Hubbell was before our committee, and as part of the documents 
that were furnished to us at that time, we received a summary--recap, 
to use the word that is on the document--a recap of fees, from Madison 
Savings and Loan, and then typed below it says ``FINAL RECAP.'' And 
that is in all caps.
  Understand, Mr. President, to put it in context, this is the legal 
work for which Mr. McDougal has said Mrs. Clinton was paid a retainer 
of $2,000 a month. Mr. McDougal's testimony was that then-Governor Bill 
Clinton came to him and said, ``We're having financial troubles. Can 
you get Hillary some money?'' And he said, ``I'll pay $2,000 a month to 
the Rose law firm. And she can handle the Madison affairs.''
  To be clear in the Record, denial from the Clintons that this ever 
happened has been entered in the record. So it is Mr. McDougal's word 
against the Clintons' word on that particular issue. But nonetheless, 
in the documents that came from Mr. Hubbell, here is the final recap of 
fees paid.
  When Mrs. Clinton was asked about these fees, she said--and I am 
quoting from her press conference--``The young bank officer did all the 
work. And the letter was sent, but because I was what you call the 
billing attorney--in other words, I had to send the bill to get the 

[[Page S18952]]
payment made, my name was put on the bottom of the letter.''
  The strong implication there, you see, is she did little or no work, 
she simply signed the letter because she was the billing partner, and 
the client did not want to pay a bill if it was from an associate.
  In an interview with the Office of Inspector General at the FDIC on 
the same matter, we find this characterization: ``Mrs. Clinton 
indicated she did not consider herself to be the attorney of record for 
Rose's representation of Madison before the ASD and presumed it to be 
Rick Massey. She recalled Massey came to her and asked her to be the 
billing attorney, which was a normal practice when an associate was 
handling a matter.''
  Then, Mr. President, in her affidavit on this matter that was given 
to the FDIC Office of Inspector General, she, being duly sworn, says, 
``While I was the billing partner on this matter, the great bulk of the 
work was done by Mr. Richard Massey, who was then an associate at Rose 
and whose specialty was securities law.''
  ``I was not involved in the day-to-day work on the project. My 
knowledge of the events concerning this representation, as set forth in 
this Answer, has been largely derived from a review of the relevant 
documents, rather than my contemporaneous involvement in the 
representation since Mr. Massey primarily handled the matter.''
  The reason this is important, Mr. President, is that Mrs. Clinton 
clearly had some relevant documents she reviewed in order to conclude 
that she was not involved in the day-to-day work on the Madison matter. 
She had no contemporaneous memory of it. She had to go back to the 
relevant documents.
  Now we have what I consider to be two relevant documents, and the 
first one is the one that came before the committee, the recap of fees 
for Madison Guaranty Savings & Loan. I questioned Mr. Hubbell about 
this at some length, and Mr. Hubbell finally said, ``Senator, I 
apologize that I am unable to articulate to you exactly the way things 
are handled so that you can really understand what happened.''
  I said, ``Mr. Hubbell, I'm sorry, I can't articulate to you my 
reaction to these numbers. I am not a lawyer. I have never made out a 
time sheet, but I have paid lots of legal bills. I think I can read a 
time sheet.'' And I went over this as I would if it were submitted to 
me, and I find the following, Mr. President.
  In the total amounts covered by this final recap, the amount billed 
by Mr. Massey by name is $5,000, rounded. I have not added up the odd 
dollars and cents, but I have rounded it. Mr. Massey, over the period 
of this representation by the Rose law firm, billed around $5,000. Mrs. 
Clinton, in that same period, billed approximately $7,700. She says she 
reviewed relevant documents that refreshed her memory, but that she was 
nothing more than the billing partner and that the work was done by Mr. 
Massey. But from these billings, Madison Guaranty was billed in Mr. 
Massey's name for around $5,000. If Mrs. Clinton was just the billing 
partner who signed for him, all of the billing should be in her name 
and his name should not appear. But if he is billing in his own name, 
then why was it necessary for her to bill significantly more than he 
did, if he was the one doing all the work?
  There is an interesting pattern here, Mr. President, because in the 
month of May, Mr. Massey billed $695, Mrs. Clinton, $840. Thus Mrs. 
Clinton billed more than Mr. Massey when the account was brought in.
  Then very dramatically the pattern changes. In June, she only billed 
$60. I assume that is a half hour's worth of work. Mr. Massey, $186. In 
July, she billed $144, he billed 10 times that, $1,400, and so on. Mr. 
Massey, in November billed $552; Mrs. Clinton does not appear. In 
December, he billed over a thousand; she billed around $4,200.
  Then it changes very dramatically and Mr. Massey disappears, as Mrs. 
Clinton starts billing heavy-hitter numbers to the point where at the 
bottom of the sheet, when you add it all up, Mr. Massey billed around 
$5,000. Mrs. Clinton has billed around $7,700.
  The other contemporary document which we have been able to obtain, 
which presumably Mrs. Clinton had available to her as she refreshed her 
memory, was the document that came before the committee this week where 
Susan Thomases took notes on a conversation during the campaign with 
Web Hubbell. These notes are very revealing against the background I 
have just outlined.
  This is what Susan Thomases testified Mr. Hubbell told her. She made 
it clear she did not know whether this was the truth or not; she was 
simply recording what she was told. To put it in context, Mr. 
President, her assignment on the campaign at the time this conversation 
took place was damage control over the Whitewater controversy.
  Mr. DODD. Will my colleague yield on that point?
  Mr. BENNETT. Surely.
  Mr. DODD. I appreciate going into these matters. As I understand it, 
we are debating the issue of subpoenas. We are kind of revisiting what 
we went over in the committee. My colleague has a right to do it. I am 
not suggesting he does not. I would like to debate the issue of 
subpoenas--that is what draws us to the floor today--instead of 
rehashing billing questions. At some point, are we going to get to the 
issue of subpoenas?
  Mr. BENNETT. I say to my colleague, I will get to it as quickly as I 
can. If I had not had the exchanges I had, I would have been through 
with this a long time ago.
  Mr. DODD. I thank my colleague.
  Mr. BENNETT. Having started, I want to finish the point, and I think 
it important all Members of the Senate find out about this because it 
goes to the heart of why we are having this conversation at all.
  Here are the notes that Ms. Thomases took of her telephone 
conversation with Web Hubbell: ``Massey has relationship with Latham 
and Hillary Clinton had relationship with McDougal. Rick''--that is to 
say Massey--``will say he had relationship with Latham and had a lot to 
do with getting the client in.''
  These are the notes of the damage control person. ``This is what 
we're going to say about how Madison Guaranty came to the Rose law 
firm: Rick will say he had relationship with Latham and had a lot to do 
with getting the client in. She did all the billing. Hillary Clinton 
had number of conferences with Latham, Massey, and McDougal on both 
transactions. She reviewed some documents. She had one telephone 
conversation in 4-85 beginning of the deal with Bev.''
  Bev is the appropriate Arkansas State regulator handling these 
matters.
  ``Neither deal went through. Broker dealer was opposed by staff but 
approved by Bev under certain conditions which they never met.''
  Now here is a crucial sentence for me: ``But for Massey, it would not 
have been there. Rose firm prohibited from filing examiner's report.'' 
And at the bottom: ``Hillary Clinton was billing partner and attended 
conferences. He''--I am assuming ``he'' is Massey--``he had a major 
role blank hours versus Hillary Clinton's blank hours.''
  We are trying to fill in the blank, and the only document we have 
with which to fill in the blank goes contrary to these notes. That is, 
Mrs. Clinton's hours are greater than Mr. Massey's hours rather than 
less. But the interesting thing for me is the statement flat out: 
``Rick will say he had relationship with Latham and had a lot to do 
with getting the client in.''
  Later on: ``But for Massey, it would not have been there.''
  The December 18 New York Times has the following comment:

       In her 1992 notes, Ms. Thomases records how top campaign 
     officials discussed how to answer questions about Madison and 
     the Rose firm.
       Her notes show that Mr. Hubbell told her that an associate 
     in the firm, Richard Massey, ``will say he had a lot to do 
     with getting client in.'' Mrs. Clinton has also said, in 
     sworn testimony to regulators, that Mr. Massey brought in 
     Madison as a client. But Mr. Massey, now a partner in the 
     Rose firm, has told Federal investigators that he does not 
     know how the firm came to represent Madison.

  Well, Mr. President, I think the Senator from Connecticut makes an 
appropriate point, and we should not rehash everything that happened in 
the hearings. I will now step down. But I go through all of this to 
demonstrate my conviction that pressure from the committee has been 
essential to the forthcoming of documents. Whether the 

[[Page S18953]]
pressure has been continued badgering by the majority staff or whether 
it has been formal subpoenas or threats of subpoenas, it has taken 
pressure every step of the way for us to get documents. And in every 
case, when we have come close to getting a resolution to an issue, we 
were told, ``Well, that document does not exist,'' or ``I do not 
remember.'' And we find the same circumstance here. After we discussed 
the conflicting evidence, Web Hubbell told me, ``The only way you are 
going to find out what really happened, Senator, is to get the original 
billing sheets.'' We now find that the original billing sheets do not 
exist.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER (Mr. Brown). The Senator from Alabama [Mr. 
Shelby] is recognized.
  Mr. DODD. Mr. President, point of order. This Senator was standing, 
and I have been here for some time to speak. Also, are we not going 
back and forth on either side of this matter?
  The PRESIDING OFFICER. The Senator has made a point of order. It is 
my understanding that it is in the Chair's discretion to recognize the 
Senator from Alabama. I am advised that he has been here for 2 hours, 
which is a significantly longer period of time than the Senator from 
Connecticut.
  The Senator from Alabama is recognized.
  Mr. SHELBY. Mr. President, it is not surprising to me today that we 
are where we are today--forced to seek enforcement in the courts of a 
subpoena for documents from the White House.
  It is no surprise to me, Mr. President, because the White House's 
refusal to release the notes sought under this resolution is part and 
parcel of this administration's consistent and continuous way of 
operating, its modus operandi, if you will, on how to cooperate with 
the special committee without really cooperating.
  It goes something like this: ``Do not give up any information or 
documents unless you absolutely have to, and if forced to give them up, 
release it to the press first with your spin on it before giving it to 
the committee.''
  Mr. President, throughout the committee's investigation, witnesses 
from the White House have come before the committee and, en masse, 
failed to recollect, remember, or to recall important meetings, 
conversations, and phone calls.
  We have so much testimony on the record, reciting the lines, ``I 
cannot remember, I do not recall, I do not have a specific 
recollection,'' that you would begin to wonder whether amnesia is, in 
fact, contagious.
  We had the dance of the seven veils from the White House witnesses, 
whom the committee was being forced to recall every time a new document 
or phone log previously unattainable mysteriously appeared in some way.
  Interestingly, Mr. President, while White House officials were 
suffering under the debilitating loss of memory, or selective memory, 
career prosecutors and law enforcement personnel were able to remember 
phone calls, conversations, and meetings with great specificity.
  Quite frankly, the testimony before the committee has come to be the 
tale of two stories. One story was told by the Clintons' political 
appointees and long-time business partners and friends, versus the 
story told by career professionals, civil servants, law enforcement 
personnel and, yes, investigators.
  Mr. President, this wholesale memory loss, evasive answers, and 
claims of privilege against document production sounds strangely 
familiar, does it not?
  Indeed, Mr. President, in the past couple of weeks I have noted what 
I believe is an increasing similarity between this White House and the 
Nixon White House. In my view, the committee's need to enforce the 
subpoena for the notes only reinforces the Nixonian comparison.
  Last week, during the committee hearing on Whitewater, I compared 
some of the arguments that Mr. Clinton has made with the arguments that 
Mr. Nixon made in support of Executive privilege in 1973 and 1974. Now, 
some have suggested that this is purely a political exercise. But the 
fact is, Mr. President, that this is the first time that such a 
defense--that I am aware of--has been raised since the Nixon 
administration.
  Furthermore, this same defense of privilege has been tried and tested 
in the courts, and it has failed. The comparison is, therefore, self-
evident, Mr. President, and the exercise rather instructive, giving all 
of us an opportunity to examine the reasonableness of the White House's 
claim of attorney-client and possibly Executive privilege.
  I would like to share some of the quotes with you. First, this is 
President Nixon's response to a question from a UPI reporter on March 
15, 1973.
  He said:

       Mr. Dean is counsel to the White House. He is also one who 
     was counsel to a number of people on the White House staff. 
     He has, in effect, what I would call a double privilege, the 
     lawyer-client privilege relationship, as well as the 
     Presidential privilege.

  Those were the words of President Nixon. Compare those with the 
following words, which were sent up to the committee by the White House 
on December 12, 1995:

       The presence of White House lawyers at the meeting does not 
     destroy the attorney-client privilege. On the contrary, 
     because of the presence of White House lawyers, who 
     themselves enjoy a privileged relationship with the President 
     and who are his agents, was in furtherance of Mr. Kendall's 
     and White House counsel's provision of effective legal advice 
     to their mutual client, their presence reinforced, rather 
     than contradicted, the meeting's privileged nature.

  Think about that just a minute. Compare them in your own mind.
  I will read President Nixon's address to the Nation announcing an 
answer to the House Judiciary Committee subpoena for additional 
Presidential tape recordings on April 29, 1974.
  President Nixon said:

       Unless a President can protect the privacy of the advice he 
     gets, he cannot get the advice he needs. This principle is 
     recognized in the constitutional doctrine of executive 
     privilege, which has been defended and maintained by every 
     President since Washington and which has been recognized by 
     the courts, whenever tested, as inherent in the Presidency.

  Let us compare Nixon's statement to the White House brief on behalf 
of President Clinton to the committee, December 12, 1995:

       If notes of this type of meeting are accessible to a 
     congressional investigating committee, then the White House 
     counsel could never communicate, in confidence on behalf of 
     the President, with the President's private counsel, even 
     when the discussions in question are properly within the 
     scope of the official duties of the governmental lawyers. 
     Such a rule would deprive the White House counsel of the 
     ability to advise the President and his White House staff 
     most effectively regarding matters affecting the performance 
     of their constitutional duties.

  You be the judge. The words of Nixon and the words on behalf of 
President Clinton.
  I will now share with you a statement President Nixon made to 
reporters' questions, the National Association of Broadcasters, on 
March 19, 1974:

       Now, I realize that many think, and I understand that, that 
     this is simply a way of hiding information that they should 
     be entitled to, but that isn't the real reason. The reason 
     goes far deeper than that. In order to make decisions that a 
     President must make, he must have free, uninhibited 
     conversation with his advisers and others.

  The words of President Nixon. Compare those with the words of the 
White House brief on behalf of President Clinton, December 12, 1995:

       The committee's action also implicates important 
     governmental interests--namely, first, the ability of White 
     House counsel to discuss in confidence with the President's 
     private counsel matters of common interest that indisputably 
     bear on both the proper performance of executive branch 
     duties and the personal legal interests of the President, and 
     second, the ability of White House counsel to provide 
     effective legal advice to the President about matters within 
     the scope of their duties, including the proper response of 
     executive branch officials to inquiries and investigations 
     arising out of the President's private legal interests.

  Again, ``Private legal interests.'' Compare, again; you be the judge 
of the similarity.
  Now, from the words of President Nixon in a letter responding to the 
House Judiciary Committee subpoenas requiring production of 
Presidential tape recordings and documents, June 10, 1974. What did he 
say?

       From the start of these proceedings, I have tried to 
     cooperate as far as I reasonably could in order to avert a 
     constitutional confrontation. But I am determined to do 
     nothing which, by the precedents it set, would render the 
     executive branch, henceforth and forevermore, subservient to 
     the legislative branch, and would thereby destroy the 
     constitutional balance. This is the key issue in 

[[Page S18954]]
     my insistence that the executive must remain the final arbiter of 
     demands in its confidentiality, just as the legislative and 
     judicial branches must remain the final arbiters of demand on 
     their confidentiality.

  The word of President Nixon.
  Now, in the brief on behalf of President Clinton to the committee, 
December 12, 1995:

       In a spirit of openness and with considerable expenditure 
     of resources, the White House has produced thousands of pages 
     of documents and made scores of White House officials 
     available for testimony, foregoing assertion of applicable 
     privileges. In view of this cooperation, the committee's 
     attempt, after 18 months, to invade the relationship between 
     the President and his private counsel smacks of an effort to 
     force a claim of privilege by the President, who must assert 
     that right to avoiding risking the loss, in all fora, of his 
     confidential relationship with his lawyer.

  Now, you compare it. You have seen the words and the comparison. I 
think they are relevant. This comparison, I believe, Mr. President, is 
self-evident and the exercise rather instructive.
  I do not know whether the Clinton administration has anything to 
hide. But I do know this: The first administration to use these 
arguments certainly did have something to hide, and we know what 
happened there.
  If the White House does not have anything to hide, and I hope they do 
not, if there is nothing of substance in these notes, nothing damaging 
in these notes as they claim, then they should comply with the subpoena 
and produce them to the committee without any reservations, without any 
conditions, because, Mr. President, if there is nothing damaging in 
these notes, it is incomprehensible to me why they would raise a 
defense clearly rejected over 20 years ago.
  Mr. President, I also would ask unanimous consent that a letter from 
Mr. Hamilton, to the President, dated January 5, 1994 be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                              The White House,

                                    Washington, December 14, 1995.
     Michael Chertoff,
     Special Counsel.
     Richard Ben-Veniste,
     Minority Special Counsel, U.S. Senate, Special Committee to 
         Investigate Whitewater Development Corporation and 
         Related Matters, Dirksen Building, Washington, DC.
       Gentlemen: Pursuant to the agreement described in my letter 
     to Mr. Chertoff of December 13, 1995, I am enclosing copies 
     of the January 5, 1994, letter from James Hamilton to the 
     President (S 012511-S 012516).
       Please feel free to call me if you have any questions.
           Sincerely yours,
                                                Jane C. Sherburne,
     Special Counsel to the President.
                                                                    ____



                                             Swidler & Berlin,

                                  Washington, DC, January 5, 1994.
     The President,
     The White House,
     Washington, DC.
       Dear Mr. President: At Renaissance you asked for my ideas 
     on management of the Whitewater and trooper matters. This 
     responds.
       As a preface let me mention that, because of my 
     representation of the Foster family, I've had numerous calls 
     from the media about these issues and thus know the views 
     that some of them hold. Let me also say that, so far, the 
     White House generally has handled these matters well.
       Here are my ideas, some of which are obvious and have been 
     implemented, but perhaps bear repeating.
       1. Despite the falsity of the allegations, these remain 
     treacherous matters, L.A. Times reporters basically believe 
     the troopers (although this confidence should now be shaken). 
     Washington Post reporters consider the Lyons report a 
     ``joke'' because of its incompleteness, and suspect a cover-
     up when it is cited in response to current inquiries. 
     Reporters are intrigued by Vince's inexplicable death, and 
     thus continue to search for Whitewater connections.
       2. Investigations, like other significant matters, must be 
     carefully managed. One person in the White House (Bruce, I 
     assume) should be assigned responsibility for coordinating 
     information gathering, responses to official inquiries and 
     public statements about these matters. This cannot be treated 
     as an incidental assignment.
       3. The White House should say as little and produce as few 
     documents as possible to the press. Statements and documents 
     likely will be incomplete or inclusive, and could just fuel 
     the fires.
       4. The White House should ensure that what statements it 
     does make are consistent and coordinated. Erroneous or 
     conflicting statements could be disastrous; the Nixon White 
     House brought huge trouble upon itself by issuing inaccurate, 
     inconsistent statements about Watergate. The Washington Times 
     in particular has been dissecting current White House 
     communications.
       5. Responses to official inquiries--both written and oral--
     must be carefully made. Even oral misstatements could result 
     in investigations and sanctions. Moreover, the Department of 
     Justice, FBI and Park Police all leak unconscionably (and 
     already have as to these matters), and some officials 
     obviously are inclined to attack the White House's handling 
     of the inquiries.
       6. The White House should not forget that attorney-client 
     and executive privileges are legitimate doctrines in proper 
     contexts. While the on-going release of Whitewater documents 
     to Justice seems appropriate, Bernie initially acted properly 
     in protecting the contents of Vince's files.
       7. If politically possible, Janet Reno should stick to her 
     guns in not appointing an independent counsel for Whitewater. 
     An independent counsel--who might pursue his or her self-
     aggrandizement rather than the truth--is a recipe for 
     trouble.
       8. The White House must let Justice do its investigation 
     without interference. Any hint of attempts at interdiction or 
     manipulation would raise the spectre of Watergate.
       9. The White House also should avoid any future contacts 
     with subjects of the investigation that might provoke cover-
     up allegations.
       10. You should continue to demonstrate that you are engaged 
     fully in the business of running the government and not 
     distracted by these side shows. If the press senses concern, 
     its efforts redouble.
       11. Because you will continue to receive reporter questions 
     about these matters, I respectfully suggest that you always 
     be prepared personally with a response to the issues of the 
     day. I expect that ``no further comment'' often will suffice.
       I hope the above views are at least somewhat useful. 
     Kristina and I hugely enjoyed the opportunity to visit and 
     recreate with you and Hillary in Hilton Head. The football 
     game was stupendous fun; the ``scrum play'' was the call of 
     the day. I only wish the rest of America knew you as the 
     Renaissance family does and had heard your moving remarks on 
     Saturday night.
           Best regards,
                                                   James Hamilton.

  Mr. SHELBY. Mr. President, just to paraphrase some of it, not all of 
it, in this advice to the President by Mr. Hamilton, the attorney:

       The White House should say as little and produce as few 
     documents as possible to the press. Statements and documents 
     likely will be incomplete or inconclusive, and could just 
     fuel the fire.

  Listen to this advice to the President:

       The White House should ensure that what statements it does 
     make are consistent and coordinated. Erroneous or conflicting 
     statements could be disastrous; the Nixon White House brought 
     huge trouble upon itself by issuing inaccurate, inconsistent 
     statements about Watergate. The Washington Times in 
     particular has dissecting current White House communications.

  Then, item No. 6 on the advice to the President:

       The White House should not forget that attorney-client and 
     executive privileges are legitimate doctrines in proper 
     contexts. While the ongoing release of Whitewater documents 
     to Justice seems appropriate, Bernie initially acted properly 
     in protecting the contents of Vince's files.

  Item 11:

       Because you will continue to receive reporter questions 
     about these matters, I respectfully suggest that you always 
     be prepared personally with a response to the issues of the 
     day. I expect that ``no further comment'' often will suffice.

  Now, Mr. President, item No. 2, back on the first page of the letter 
which I have introduced, to the President by Mr. Hamilton says:

       Investigations, like other significant matters, must be 
     carefully managed. One person in the White House, (Bruce I 
     assume) should be assigned responsibility for coordinating 
     information gathering, responses to official inquiries and 
     public statements about these matters. This cannot be treated 
     as an incidental assignment.

  However, Mr. President, rather than heeding the advice, this advice 
which has, in fact, led to the same mistakes that the Nixon White House 
made, I think the White House should be forthcoming on these subpoenas. 
If they have nothing to hide, and I hope they do not, why go through 
the exercise? Why go through this?
  What are we interested in, Mr. President, as this committee? We are 
looking at the truth of what went on. Did they have information that 
they should not have had? Where did they get this information? I 
believe the President would serve himself well and the American people 
if he produced these documents with no conditions, without reservation.
  Mr. DODD. Mr. President, let me begin by addressing some of the 
issues that have been raised by my colleague from Alabama.
  Clearly, anytime there is a confrontation between the executive 

[[Page S18955]]
  branch and the legislative branch, which oftentimes happens, people are 
going to make similar arguments. We should not be surprised if some 
statements sound similar.
  But comparing Watergate and Whitewater is just ridiculous in the mind 
of this Senator--there is just no comparison whatsoever. When someone 
tries to make that sort of comparison they are just creating some sort 
of sideshow.
  The comparison is spurious. First, no one ever sought to invade the 
attorney-client privilege of President Nixon. President Nixon raised 
the issue of executive privilege. The appropriate committees during 
that period respected the attorney-client privilege when it was raised. 
Now, Executive privilege was another matter, but attorney-client 
privilege, even in Watergate, was never breached.
  Second, when the executive privilege claims of President Nixon were 
overcome, it was only through a grand jury subpoena issued by Special 
Prosecutor Cox. As I mentioned earlier, the independent counsel in our 
case has reached an agreement with the White House concerning the notes 
that are at issue in the subpoena. So the situation is completely 
different.
  Also, during the Watergate matter, the Senate's attempt to get the 
material obtained by Special Prosecutor Cox was rebuffed by the courts.
  Finally, the Special Prosecutor's efforts to get materials in the 
Watergate matter occurred in the context of overwhelming evidence of 
criminal conduct--obstruction, misuse of the CIA, FBI, and IRS, the 
payment of hush money, clemency for burglars. By contrast, in the 
Whitewater matter, after months of hearings by the special committee, 
there is no evidence of impropriety much less illegality by the Clinton 
administration.
  In fact, my colleagues may have seen buried away in the newspaper 
articles in the last couple of days, that Pillsbury Madison & Sutro, an 
independent law firm, just completed a report examining whether there 
should be any additional civil proceedings against the Clintons with 
regard to Madison Guaranty Savings & Loan and the Whitewater 
Development Corp. The report was commissioned by the RTC and it took 2 
years and $4 million for it to be completed. Mr. President, this 
report, which I am going to ask unanimous consent be printed in this 
Record--it was made a part of our committee record the other day--goes 
into great detail, and concludes that no further action should be taken 
against the Clintons. It exonerates the Clintons.
  So, when we compare the obstruction of justice and the great 
criminality that a special prosecutor saw in Watergate and compare that 
with this particular case, it just goes to confirm what many people, 
unfortunately, are feeling here. This is becoming a political sideshow, 
and it should not.
  Every Member has the right to raise whatever issues they want, but I 
do not think it does us any good as an institution, nor the committee, 
when we start drawing comparisons that have no relevancy whatsoever 
when it comes to the particular matter that we are being asked to 
address.
  Mr. President, let me also address one of the comments that was made 
by my friend and colleague from Utah, Senator Bennett. He said, in 
effect, that we need this kind of pressure to get evidence from the 
witnesses.
  Again, I just remind my colleagues here, this year alone we have had 
32 days of hearings and meetings on this matter. Last year we had 
extensive hearings on this matter. We have spent now a total, if you 
take congressional committees and you take the independent counsel's 
activities, over the last year or so, we have spent in excess of $25 
million. Let me repeat that, the taxpayers have paid over $25 million 
on these investigations. To date, there has been no substantial 
evidence of any illegalities or unethical behavior. That has been the 
conclusion of witness after witness.
  The White House has submitted to the committee over 15,000 pages of 
official records without a single court order being necessary, not one. 
The President's personal attorney has produced 28,000 pages of 
documents. Every witness that has appeared, last year and this year, 
has come at the urging of the White House. So when my colleague from 
Utah says without the pressure of having a subpoena filed, or the 
Senate as a body taking an action--that is not borne out by the facts.
  We can disagree with what witnesses say. We may have problems, as the 
chairman has had, with the testimony of a number of witnesses. I 
respect that. I am not suggesting that we have all agreed with all the 
testimony. But there is a significant difference between what has 
happened in this matter, and what has happened in the past. We are all 
familiar with previous administrations that fought congressional 
committees tooth and nail. That has not been the case here.
  It is very important, I think, for our colleagues and the public at 
large to understand that significant difference. This White House has 
been extremely forthcoming, extremely forthcoming when it comes to 
documents and when it comes to witnesses appearing before our 
committee. So the notion that it would be impossible to get any kind of 
negotiated result on the issue now before us, based on what has 
happened previous to this, is not borne out by the facts.
  To the contrary, we have been able to reach agreement on virtually 
every other issue that has come before us without having to go to the 
courts. So, for those of us who stand here today and urge this body and 
urge our colleagues here to try a little bit harder to resolve this 
issue without getting to the courts, that is based on the fact that we 
have not had to do that yet. We have completed an awful lot of work 
without any problems. The committee has taken over 150 depositions and 
over 70 witnesses have appeared before the committee. As the chairman 
pointed out the other day in committee, we are basically through with 
the first two phases, other than some witnesses that need to be brought 
back. But we are prepared now to move to the last phase.
  So here we have gone through all of this without having to resort to 
the courts. We are down to a legitimate issue here. The White House is 
not being obstructionist, this is not Watergate. As our colleague from 
Maryland pointed out, there are significant legal scholars who believe 
that the executive branch assertion of attorney-client privilege here 
has merit. In fact, they go to some length and cite the case law and so 
forth that upholds their point. I know there are others who have a 
different point of view. I am not arguing there are others who have a 
different point of view.
  To the chairman's credit and to his counsel's credit, there has been 
an effort here now to narrow this and get it done. As I said to my 
colleague from Utah a few minutes ago, the independent counsel now has 
agreed to conditions with the White House. He is satisfied with an 
agreement that will protect the White House from a waiver of the 
attorney-client privilege. Our chairman in our committee would be 
satisfied with a similar agreement. The one missing link in all of this 
is our colleagues in the other body, to get them to agree to what the 
independent counsel has agreed to, what the chairman has agreed to, and 
what the White House has agreed to; that is, to turn over these 
documents with the understanding there has not been a general waiver of 
the attorney-client privilege.
  Clearly, it is not unreasonable for the White House to pursue these 
agreements. As has been pointed out by legal experts, there have been a 
number of cases where, if you waive the privilege in one instance, it 
is seen as subject matter waiver. So there is a legitimate interest in 
trying to make sure that, in order to comply with committee's request 
to look at the notes from this meeting, that the President has not 
waived his attorney-client privilege. Understandably, the President 
wants to avoid a fishing expedition that goes off in a number of 
directions. All of my colleagues can appreciate that concern.
  We have to remember that we are setting a precedent with our actions 
today. And that precedent could also affect Members of this body. Like 
the President, we are public officials who have both public and private 
roles. Some of my colleagues on one side of the issue today may change 
their minds when, in the future, someone argues that they have waived 
their attorney-client privilege in similar circumstances. We can all 
understand the 

[[Page S18956]]
President's argument, that he needed both his private attorneys and 
counsel for the Presidency in that meeting in order to properly address 
all of the issues that might arise. As has been noted, legal scholar 
after legal scholar after legal scholar has said that is an appropriate 
invocation of that privilege.
  So it seems to me we ought to try to avoid going to court on this 
issue. That is why we make the strong case we do here. It is not 
because someone is trying to hide documents. If that were the case, 
then I suspect the executive branch might rely on the advice of legal 
experts and say let us just take it to court. But they have said they 
will turn over these documents, but do not ask us to waive, on the 
entire subject matter, the attorney-client privilege. We do not want to 
do that. And I do not blame them for not wanting to do that. I do not 
think anyone would, given the dangers associated with that particular 
approach.
  So, I am still hopeful that, given the history of this White House, 
when you go back and look over the last 2 years, the dozens and dozens 
of witnesses, the thousands of pages of documents, an agreement can be 
worked out. I hope future administrations will look at how this 
administration has responded, again, never requiring the committee to 
go to court, never requiring the committee to drag witnesses in, never 
requiring the committee to fight for documents. So, with all due 
respect to my colleague from Utah, because of that cooperation, there 
is an opportunity to resolve this issue short of a vote by the full 
Senate. And the fact that the independent counsel has reached an 
agreement, the fact that the committee could settle for a similar 
agreement, suggests that we ought to try to meet with our colleagues in 
the House and resolve this matter quickly and efficiently. Lets get the 
notes and move on so this committee can complete its work.
  My hope would be in these coming hours here that will be the result. 
Some may say, well, if we can vote on it here, we will put more 
pressure on them. There will then be the vote of the U.S. Senate, 
issuing subpoenas where attorney-client privilege has been invoked. I 
think that is a wrong approach to take on this matter.
  I point out, Mr. President, I have referred to the Pillsbury Madison 
& Sutro report on the RTC issues. Again, I urge my colleagues to obtain 
a copy of this report and to review this report and to examine the 
results.
  The Wall Street Journal reported the results the other day.
  Let me quote, if I can, the Wall Street Journal story on this report:

       President Clinton and Hillary Rodham Clinton had little 
     knowledge and no control over the Whitewater project in which 
     they invested, and they weren't aware that any funds that 
     went to Whitewater may have been taken from Madison. . . . 
     Accordingly, there is no basis to sue them.

  Mr. President, let me emphasize that: ``There is no basis to sue the 
President or the First Lady.'' That is not Democrats and Republicans 
sitting there squabbling about this; that is an independent 
investigation, which took 2 years, without the glare of hearings and 
cameras, and on the central issue they say that no further civil 
proceedings should take place. That is a very important piece 
conclusion.
  So, again, I hope in the next few hours that our colleagues would 
adhere to the advice of our colleague from Maryland and others, and 
take care of this matter without going to the courts. Let us avoid a 
dangerous precedent.
  I know what is happening here. Some of my colleagues are thinking, 
``Well, you know, we have them on the ropes now. What are you trying to 
hide?''
  Obviously, that is just politics. We all know that. You can cause 
some damage with just the photograph of witnesses huddling with 
lawyers. That is titillating. That is exciting stuff. ``Now they are 
bleeding. Now we have them.''
  That is what we really have going on here now. We ought to try to 
avoid that. Our role, fundamentally, is legislative. We conduct 
investigations, of course, but that is primarily to help develop 
legislation. And it seems to me that, where you have a White House that 
is cooperating, you ought to avoid a confrontation with the executive 
branch.
  After all, it is not clear what the third branch of government, the 
judiciary, will do. In similar cases, the courts have thrown the matter 
right back to us and have said, ``Look, you people sort this out your 
own way. We are not going to make the decision for you.'' So we may end 
up, after months of squabbling, in no better position than we are in 
today.
  So I urge my colleagues, let us adopt a resolution, if you will, or 
language which would urge us all to stay at that table and resolve this 
over the next few days. I believe we can. As I say, we are down to one 
last entity here. We are down to our colleagues in the other body being 
satisfied that this is an acceptable agreement. The independent counsel 
agrees, we agree, and the White House agrees. This is not a time to 
provoke an unwarranted and unwise confrontation that would create 
problems for us in the years to come.
  Mr. FAIRCLOTH addressed the Chair.
  Mr. D'AMATO. Mr. President, I intend to yield to my friend and 
colleague who has been on the floor for quite a while. If I might, 
without prejudicing anybody, ask my colleague----
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. D'AMATO. Might I ask my colleague to give me a minute?
  Mr. FAIRCLOTH. Sure.
  Mr. D'AMATO. First of all, I want to thank the Senator from 
Connecticut for an observation that he has made. It is not easy when 
there are politically charged times and atmosphere. Admittedly, this 
is. We would be disingenuous at the least to say that it was not. So I 
admit that. Therefore, it takes even more courage for the Senator from 
Connecticut to recognize that the chairman--and, more importantly, that 
the committee--has really made every effort to avoid unnecessary 
confrontations, repeatedly, as it is related to documents that may have 
been in the possession of White House counsel, documents that may have 
been in the possession of Mr. Foster's counsel.
  We have set up procedures whereby we could have review of notes, 
where counsel will agree, or where the ranking member and the chairman 
would agree, so that we would not put matters into the public domain 
that had no relationship to this committee. So we have made these 
extraordinary efforts, and indeed it was on the basis of the two 
suggestions that the White House did concede.
  We indicated that we were quite content to get the notes. That still 
remains our position. We are not looking to invade any legitimate claim 
or to speak to the President's counsel. At least we are not as it 
relates to what he did, et cetera, or what advice he may have given to 
the President. We are not asking that. That is an important 
acknowledgment. I want to thank my colleague.
  Unfortunately, we can only speak for ourselves and we can do on the 
committee--Democrats and Republicans. Unfortunately, that is not the 
connotation that has come from those many associated with the White 
House or from the White House spokesperson. If you could read their 
statements, there is a failure to acknowledge the great and 
extraordinary lengths that over a period of time--not just with respect 
to this matter--we have engaged in, and certainly I would submit that 
we made every effort not to move it, but it has finally reached a point 
where I determined that it was necessary for us if we are going to 
resolve this and move to this point. So I make that observation.
  Mr. DODD. If my colleague will yield, I appreciate that, and I 
realize that we will at times have disagreements.
  I also made the observation--I ask my chairman and friend --that this 
administration has been extremely forthcoming with witnesses and 
documents the committee has wanted.
  Would not my colleague agree that is the case?
  Mr. D'AMATO. There I have to say we have a disagreement, and we just 
do. I am not suggesting that there have not been many areas as it 
relates to documents that have come forth.
  Mr. DODD. But we have not had to go to court.
  Mr. D'AMATO. That is right. I think the reason that is because we 
have made an extraordinary effort--``we'' being the committee--on a 
bipartisan basis both before, when my friend and colleague and the 
Democrats were in 

[[Page S18957]]
the majority, and since we have carried that further.
  So I say the committee has made the extraordinary effort in a 
bipartisan effort to interact and to do our job appropriately. But as 
it relates to the ``forthcoming,'' some of this may not be fair, but I 
will make an observation as it relates to witnesses and production of 
documents. Without going through the whole thing, I believe that it has 
not been an exercise of the same faith and bipartisanship that we have 
operated with in the committee.
  Mr. DODD. I appreciate my colleague's comments. I would just say, if 
you use other examples----
  Mr. D'AMATO. There are always examples. Look, some people can do 
these things better in terms of an appearance, and I do not want to, 
ourselves, to degenerate into who did more and less and who withheld 
and who did not in terms of all of the administrations that the 
Congress has dealt with. But I would say it is not the quantity of 
records that are produced but it is the quality. It is the fact that 
information that is important and goes to the essence of this 
investigation has to be produced in a timely manner without there being 
bits and pieces. Of course, some of that comes from witnesses 
themselves who may not be fair. And it would not be fair, for example, 
as it relates to Mrs. Thomases' testimony and also the production of 
records as a kind of a trickling. But the same could be said in other 
areas as it relates to the White House. But again we could disagree on 
that. And I respect my colleague's right to share a difference of 
opinion on it.

  Mr. FAIRCLOTH addressed the Chair.
  The PRESIDING OFFICER. The Senator from North Carolina is recognized.
  Mr. FAIRCLOTH. I rise in strong support of Senate Resolution 199. Mr. 
President, Whitewater has come to mean many things to many people, but 
it is worth discussing how we arrived at this point. It is worth 
reviewing how Whitewater became a national story because it tells us 
something about the failure of the savings and loan industry and it 
also tells us a lot about the ethics of Bill and Hillary Clinton.
  In February 1989, Madison Guaranty Savings & Loan failed. The failed 
cost to the American taxpayers was $60 million. This may not seem like 
a lot of money in Washington, but beyond the beltway it is still 
considered a sizable amount. In fact, the entire savings and loan 
crisis cost the American taxpayers $150 billion, which is truly a 
staggering amount. Is it any wonder that the Banking Committee has 
every right--in fact, a duty--to review the cause of the crisis? While 
Madison was a small institution, its failure ranks as one of the worst. 
It failed to the taxpayers; over 50 percent of its assets were lost. 
The taxpayers had to pick them up. Fifty percent of its assets were 
totally worthless.
  Jim McDougal took over Madison from 1982 to 1986. In 4 short years, 
the so-called assets grew from $6 to $123 million. During McDougal's 
tenure at Madison, loans to insiders increased from $500,000 to $17 
million--insider loans from $500,000 to $17 million. Madison, frankly, 
was typical of many savings and loans in Arkansas. During his tenure as 
Governor of Arkansas, 80 percent of Arkansas State chartered thrifts 
failed, costing U.S. taxpayers $3 billion. That is $3 billion in tax 
money because the savings and loan system in Arkansas was run as a cozy 
operation without any worthwhile regulatory oversight. The Whitewater 
debacle was among one of the those risky real estate ventures that 
caused Madison to fail. We know from the hearings held by the House 
Banking Committee that at least $80,000 in insured deposits was taken 
from Madison Guaranty and siphoned off to Whitewater--$80,000 of it was 
lost on Whitewater.
  Furthermore, the claim that the Clintons lost money is just 
absolutely false. They never had their money at risk. It was a 
sweetheart deal for the new Governor and much like the commodities 
trade in which Hillary earned $100,000 because she read the Wall Street 
Journal. Madison was a high flier. It has been called a personal piggy 
bank for the politically elite in Arkansas. I called it a calabash of 
intrigue.

  I do not often agree with the editorial pages of the New York Times, 
but they somewhat paraphrased me and they said it was ``a stew of 
evasion and memory lapses.'' I think they are absolutely correct.
  Mr. President, the central issue in Whitewater has been whether 
Madison received favorable treatment from the Arkansas savings and loan 
regulators because of Jim McDougal's close ties to Bill Clinton. 
Essential to the question is this: Did the losses to the taxpayers 
increase because Jim McDougal hired the Rose law firm to press his case 
with the State regulators which Bill Clinton had appointed?
  The answers are becoming more clear. In just the last few days, on 
Monday, evidence was revealed that Mrs. Clinton was a lead attorney on 
matters relating to Madison at the Rose law firm. Further, and most 
significant, Mrs. Clinton may have made false statements--a Federal 
crime--to the RTC about who was responsible for bringing Madison's 
business to the Rose law firm. Mrs. Clinton contended in writing to the 
RTC that Richard Massey, then a first-year associate at the firm, was 
responsible for bringing Madison's business to the Rose law firm.
  This is incredible, to say the least. It is unbelievable to think 
that a first-year associate would be responsible for bringing Madison 
as a client to the Rose law firm given the Clintons' close ties to Jim 
McDougal who ran Madison.
  The unbelievable nature of this contrived story may be borne out in 
the notes of one of Mrs. Clinton's best friends, Susan Thomases. Miss 
Thomases was the point person for press stories regarding Whitewater in 
the 1992 campaign. She was in charge of attempting to distance Hillary 
Clinton from the failure of Madison. But her own notes read that ``Mr. 
Massey will say he had a lot to do with getting the client in.'' Her 
own notes show that the Clintons intended Mr. Massey to fabricate a 
story about who got Madison as a client for the Rose firm. This is a 
direct contradiction to what Mrs. Clinton had told Federal 
investigators. Mr. Massey has told the FDIC that he had no idea how the 
Rose law firm was hired by Madison.
  Mr. President, this is significant for two reasons. First, it 
demonstrates the Clintons were involved in obtaining lenient treatment 
from the regulators for Jim McDougal and his savings and loan that was 
deep in financial trouble. Why? Because at the same time their friend 
Mr. McDougal was covering the Clintons' loan payments for Whitewater. 
McDougal was covering the Clintons' loan payments for Whitewater.

  Can you imagine two Yale-educated attorneys that have no idea how 
their indebtedness was being paid? They knew full well. In exchange, 
the Governor's wife was going to exert her influence with the State 
regulators to help her friend and business partner, Mr. McDougal. It 
was quid pro quo, pure and simple, and there is not any other way to 
describe it.
  Second, Mr. President, it is becoming more apparent that Hillary 
Clinton may have lied to Federal investigators. Her story that it was 
Mr. Massey who obtained Madison as a client is belied by the notes of 
her best friend.
  Mr. President, in my opinion, the Whitewater hearings and the entire 
episode have been so full of so many half-truths, misleading statements 
and selective memories that it is only a matter of time before someone 
is guilty or charged with perjury. I think we have reached that point 
for some already.
  It is clear that the Clintons tried to distance themselves from 
Madison and Whitewater. Had the American public been given the real 
picture in the wake of the savings and loan crisis, I think they would 
have reacted very differently to the insider quid pro quo way of doing 
business in Arkansas, particularly since the American taxpayers paid 
for the lax regulations.
  Mr. President, Whitewater extends even farther than Madison Guaranty. 
It involves a small business investment corporation called Capital 
Management Services. This company was run by a man named David Hale. 
It, too, served as a personal bank for the well-to-do in Arkansas.
  Its purpose was to make loans to the disadvantaged--the 
disadvantaged. But that turned out to be the ruling class in Arkansas. 
Regrettably, the American taxpayers paid over $3 million for the 
failure of Capital Management. 

[[Page S18958]]

  Mr. President, it is fact that Capital Management made a $300,000 
loan to Whitewater. Now, you remember, it was supposed to be making 
loans to the disadvantaged. But Whitewater got $300,000. We have strong 
evidence that Bill Clinton asked that this loan be made. I think time 
will tell that David Hale is telling the truth when he said that Bill 
Clinton pressured him to make the loan to help benefit Whitewater. Here 
again the American taxpayers have paid to subsidize Bill Clinton's 
failed real estate venture.
  That is essentially what these hearings are about: The loss of 
taxpayers' money in Madison, Whitewater, and Capital Management. Mr. 
President, these instances may have remained Arkansas history and been 
laid to rest but for three defining events. First, the tragic death of 
Vince Foster, close friend and deputy counsel to the President; second, 
criminal referrals made to the RTC regarding Madison and Whitewater; 
and, finally, the closing of Capital Management, David Hale's small 
business company.
  Mr. President, Vince Foster's death on July 20, 1993, and the 
handling of his papers on the night of his death have raised the most 
questions with the committee. We know for a fact the First Lady spoke 
with Maggie Williams before Maggie Williams went to the White House and 
Vince Foster's office. We know they spoke later that evening when 
Maggie Williams returned to her home from Vince Foster's office and 
called the First Lady. We also know that, at nearly 1 a.m., Maggie 
Williams and Susan Thomases spoke. We have the sworn testimony of 
uniformed Secret Service officer Henry O'Neil, who saw Maggie Williams 
remove documents from Vince Foster's office on the night of his death.
  Officer O'Neil is an 18-year career man with the Secret Service. All 
of this is fact. Within the last few weeks we have gathered more 
information that I think gives credence to the notion that files were 
indeed removed on the night of Mr. Foster's death.
  First, two files relating to the Madison Guaranty were sent back to 
the Rose law firm by David Kendall. Yet, files were never part of the 
box that Maggie Williams said she took from Foster's office 2 days 
after his death.
  These documents were reviewed and cataloged by Bob Barnett, the 
Clintons' other lawyer. The two Madison files never appeared in any 
list compiled by Mr. Barnett. In other words, they had been removed 
from the boxes before they were given to Mr. Barnett.

  I think the files were removed by Maggie Williams and given directly 
to Hillary Clinton. We have further evidence that Maggie Williams 
visited the First Lady on the Sunday following Mr. Foster's death. 
Previously, Maggie Williams has said she did not see the First Lady 
until later.
  We have Secret Service logs that show Maggie Williams spent time on 
the second floor residence of the White House on Sunday immediately 
after Mrs. Clinton returned from the Foster funeral. I believe that at 
this time Maggie Williams personally delivered to Mrs. Clinton whatever 
material she removed from Mr. Foster's office that night.
  What evidence do we have to suggest that Madison may have been a 
problem or a concern for the White House or Vince Foster on July 20, 
1993? This was the same day that a search warrant was authorized for 
the office of David Hale in Little Rock. That warrant sought 
information about David Hale's $300,000 loan to Whitewater via Madison 
Marketing and Susan McDougal.
  Again, our Whitewater hearings have uncovered that the White House 
was aware of the Hale investigation from the very beginning.
  We have testimony from a career Small Business Administration 
official. The SBA briefed Mack McLarty in May 1993 about the SBA 
investigation of David Hale. I have no doubt that within the legal 
circles of Arkansas, the impending search of David Hale's office was a 
well-known fact within the community. If so, this information surely 
would have reached Vince Foster.
  We know Mr. Foster thought Whitewater was a ``can of worms,'' his own 
words, even before he became deputy White House counsel. We also know 
that the failure of Madison and the first criminal referrals were known 
to the White House.
  In March 1993, Roger Altman, the Deputy Secretary of the Treasury, 
was informed of this referral naming the Clintons. Do we know that he 
relayed this information to the White House? We know that about the 
same time Altman received his briefings, two articles were faxed to 
Bernie Nussbaum's office--one sent so hurriedly that its cover sheet 
was handwritten by Josh Steiner.
  The next day the same fax was sent again, this time by Mr. Altman's 
secretary. It is clear he wanted the White House to know more about 
Whitewater.
  All of these matters were known to the White House. Madison, criminal 
referrals, David Hale, all were on the White House's mind. Maybe not 
the public's at the time, but certainly the White House was tracking 
events closely. Whether this was a defining moment for Mr. Foster, we 
do not know. But the circumstantial evidence that has been brought out 
in these hearings is very strong.

  Mr. President, now we begin to focus on the significance of the 
November 5 meeting that is the subject of this subpoena. The RTC issued 
more criminal referrals on October 8. However, the White House had 
prior knowledge of these referrals. This is laid out carefully in the 
report on this resolution.
  Jean Hanson, Treasury's general counsel, imparted nonpublic 
information to Bernie Nussbaum. Nussbaum then directed this information 
to Bruce Lindsey. He told the President. The existence of these 
criminal referrals became null after an October 31, 1993, article in 
the Washington Post. Six days later the White House gathered their 
legal team in the private office of David Kendall.
  There, I believe, the White House imparted the information they had 
received in a Government capacity and used it to aid them in the 
private legal problems of Bill and Hillary Clinton. In other words, I 
believe they took information that they received because of their 
governmental capacity and used it for their personal and private legal 
problems. Further, this private meeting may have led to an effort to 
gather more nonpublic information about the Clintons' problem.
  Just days later Neil Eggleston, one of the White House attorneys 
present in the meeting, sought inside information from the SBA about 
David Hale. Finally, some of what may have been discussed at this 
meeting, I suspect, could be perceived as an obstruction of justice if 
the White House did anything that smacks of interfering with the RTC or 
the SBA investigation.
  Mr. President, this is what is so important about the November 5 
meeting. It is really the missing link for the White House hearings. We 
know from our hearings in 1994 that the White House received privileged 
information about the RTC's investigation of Madison. We do not know 
what the White House did with the information. The November 5 meeting 
may finally reveal what they did.
  It is inexcusable that taxpayers paid for these attorneys to 
essentially function as a private legal team for the Clintons. It is 
inexcusable that they would engage in this activity on Government-paid 
time. And it is inexcusable that they have the audacity to claim 
privilege as if they were private attorneys.
  Mr. President, in short, the real importance of this meeting is 
whether the heads-up the White House received from Treasury and others 
turned out to be a leg-up for the Clinton legal defense team. That 
would be wrong, unethical, and possibly illegal. This Congress needs to 
find out which.
  Finally, Mr. President, let me turn to another subject I have raised 
often in committee. Time and time again the subject of the First Lady's 
involvement in all of these issues has surfaced over and over for--soon 
it will be 3 years.
  She handled Madison work at the Rose law firm. She was active in 
Whitewater. She spoke with Maggie Williams twice on the night of Mr. 
Foster's death, before and after Ms. Williams went to the White House. 
She spoke with Susan Thomases who, in turn, spoke with Bernie Nussbaum 
about calling off the official search of Foster's office. Her chief of 
staff, Maggie Williams, was briefed about the statute of limitations 
issue, which may have affected her personally and the Rose law firm.
  Over and over, the subject keeps coming back to Hillary Clinton. I 
have 

[[Page S18959]]
called for her to appear before the committee. My friend and colleague 
from New York has been patient, very patient--sometimes I feel too 
patient--in getting the answers. I do not think we can wait any longer, 
and I do not think we should wait any longer. We have to have the First 
Lady as a witness and under oath so we can get the real answers to our 
questions. This is the key to finding out what happened, and I do not 
know any reason why she should not be willing to come and clarify the 
problems we have run into. Without her testimony, no investigation will 
be complete.
  Mr. President, let me conclude by saying that Whitewater is a very 
serious concern. We have a witness in Arkansas, David Hale, that has 
made a serious allegation against the President: That he pressured 
David Hale to make a phony $300,000 loan to Whitewater.
  The President has denied this, but with Mr. Hale's cooperation, the 
independent counsel's investigation has now resulted in nine guilty 
pleas and five more indictments, including Jim McDougal, Bill Clinton's 
business partner, and the current Governor of Arkansas, Jim Guy Tucker, 
friend of the President and friend to David Hale.
  Mr. President, the tide of Whitewater is rising. The scandal is 
getting closer to the President and the First Lady. It is getting 
closer to the White House by the day and spelling trouble for this 
President. What we can do here today may be the beginning of the end of 
the Clinton White House. These notes may begin to unravel the scandal 
and the truth finally may at last be told.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Snowe). The Senator from California.
  Mrs. BOXER. Madam President, I am very pleased I was on the floor to 
hear my colleague from North Carolina because he has a theory about 
Whitewater, and he has every right to hold any theory he chooses. I 
respect his right to his opinion, but I am here to tell my colleagues 
that not only are his views not backed up by the facts, but they are 
contradicted by the facts. I want to take just one example.

  He says the Clintons were actively involved in Whitewater. He said 
the Clintons were actively involved. Jay Stephens of Pillsbury Madison 
& Sutro just got paid by the RTC $3.6 million, and what does their 
report say? It was referred to by Senator Dodd. I am quoting:

       There is no basis to charge the Clintons with any kind of 
     primary liability for fraud or intentional misconduct. This 
     investigation has revealed no evidence to support such 
     claims, nor would the record support any claim of secondary 
     or derivative liability for the possible misdeeds of others.

  It goes on:

       It is recommended that no further resources be expended on 
     the Whitewater part of this investigation.

  So here you have a Senator who comes to the floor and says that the 
Clintons were involved when a Republican, a former U.S. attorney--and 
you can remember there were some people in the Clinton White House who 
were very concerned that perhaps he would not be objective--finds that, 
in fact, they have no involvement.
  So to come on this floor and stick to a theory that has been 
disproven I do not think does this Senate any good, especially since we 
are trying to work with the facts.
  Madam President, $3.6 million was expended to find out that the 
Clintons did not have anything to do with it, and we have a Senator 
say, ``It's getting worse. The tide is rising. We have to have Mrs. 
Clinton come before the committee,'' and all the rest.
  I suppose there is nothing that I can say to my friend that will 
dissuade him from his theory and, therefore, I am not going to try to 
do that, except to continue to rebut what he says with the facts.
  He has talked about obstruction of justice. He has talked about 
perjury, and I urge him to be very careful with the kind of things he 
says on the Senate floor, because I have to say it is very hurtful to 
reputations of people to throw those kinds of charges around here.
  I speak today as a member of the committee who voted all along to 
continue this Whitewater investigation. Some of my colleagues in the 
last vote did not vote to continue it. They felt it was a waste of 
money. I felt it was important to continue it under the leadership of 
my chairman and my ranking member.
  Why did I think it was important, and why do I think it is still 
important to continue this until it is done? Because I feel when 
allegations are thrown around here, either on this floor or in the 
press, it is very dangerous to allow those things to go unchallenged. 
So what we have is a committee that can look at these allegations, can 
bring the witnesses forward and can ascertain the facts. If we do not 
do it, then there are always going to be people out there who suspect 
wrongdoing, reputations will be ruined, and we will never get to the 
facts. So I support the work of this committee and continuing to do it 
in a bipartisan way.

  That leads me to where we are today with the subpoena. I know, 
because I am very familiar with my chairman and my ranking member, that 
when those two get together and agree on something, they can move 
mountains. I find it hard to believe that if, in fact, the Republicans 
on the committee have agreed wholeheartedly to the conditions of the 
White House, which it appears to be so, that they cannot take it a step 
further, get together with the ranking member and counsel and sit down 
in a room with the other parties and reach an agreement.
  Why do I say that? I say that because I believe to get into this 
confrontation in the courts is, at a minimum, going to delay matters. 
It is also going to cost more dollars, and I want to talk about that 
for a minute.
  We are in a Government shutdown. We are in a government shutdown 
because it is so important to Republicans, particularly in the House at 
this point, that negotiations go just the way they want before they 
will allow the Government to continue operating. Frankly, I think it is 
embarrassing for the greatest Nation on Earth to have a partial 
shutdown of the Government because certain people act like children and 
will not do what we have to do, which is get a clean continuing 
resolution, keep the Government operational and take the argument over 
the long-term balancing of the budget into a room and figure it out. I 
voted for two balanced budgets in 7 years. Others have voted for other 
forms of balancing the budget. We can do it. Everyone is so concerned 
about spending money, but not the Republicans when it comes to this 
investigation.
  It is incredible to me. Madam President, $1,350,000 has been spent 
thus far by the Senate committee; $10,000 a week on little TV sets they 
have all across that room--$10,000 a week. But they are worried about 
balancing the budget. So you take documents and instead of handing them 
out, you put them on a screen. You cannot really see it anyway. It is a 
waste of money, but money does not matter when it comes to Whitewater. 
But I suppose it was too hard for our committees to hold hearings on 
the drastic cuts in Medicare, where we did not hold any on this side 
and there was one held in the House. But when it comes to Whitewater, 
we can meet and meet and meet. And we can enforce the subpoenas and 
waste more taxpayer dollars and not get the documentation we want. I 
want to see those documents. It seems to me that if we support the 
alternative that will be offered by our ranking member today, Senator 
Sarbanes of Maryland, we can get everything we want. We can avoid a 
costly subpoena battle. We can avoid, frankly, losing in the courts, 
which would harm the U.S. Senate out into the future, and we can get 
the information if we sit down together with our colleagues in the 
House. I served over there for 10 years. I think Jim Leach and Paul 
Sarbanes, Al D'Amato, and the other principals can sit down and figure 
this out. But, oh, no, we are bringing this to a confrontation. Most of 
my Republican friends have not even talked about that. They just talked 
about their view of Whitewater.

  Money is no object when it comes to this, friends. So when you wonder 
why they are shutting down the Government and they tell you, ``Oh, my 
goodness, it is the only way we can get a balanced budget,'' ask them 
why we are going to spend all this money on Whitewater. I do not think 
you will get a very good answer.
  Waco--hearings and hearings and hearings. Ruby Ridge--hearings and 

[[Page S18960]]
  hearings and hearings. Whitewater--more hearings. Medicare cuts--no 
hearings. One begins to think, are we only here to deal with politics, 
or are we here to deal with substance? So we face an unnecessary legal 
confrontation, it seems to me. I think that the ranking member, Senator 
Sarbanes, is going to offer us a very wise way out, a way that would 
result in getting the papers that we need and keeping this away from 
the courts, which is always costly and time consuming.
  When you look at what has been spent so far on Whitewater, it is 
staggering--$1.350 million in the Senate. I told you about the RTC 
investigation, which was $3.6 million. We just referred to the Stephens 
report, which just was a recommendation not to file a civil lawsuit 
against Bill Clinton. Then you have the independent counsel, which has 
cost $22 million to date, and 100 FBI agents, not only looking at this 
President and his family and all of his dealings now, but all the way 
back to campaigns for Governor, and everything else. Well, I will tell 
you, when this is over, this President and his family will have had 
more scrutiny than a chest x-ray. Every detail--$27 million total--
without including what the House has spent. We do not know what they 
have spent because it is hidden in their Banking Committee.
  We have had 32 hearings, or public meetings, of our Senate committee. 
So how anybody can say, we better rush and do this subpoena and get to 
court because we have not had enough meetings, enough information--I 
think, frankly, the people are losing faith in this Whitewater 
investigation, and I would not blame them. We do not listen to the 
impact of cutting Medicare and Medicaid and education and the 
environment and shutting down the Government. We do not do that. But 
there is hearing after hearing, millions of dollars after millions of 
dollars spent to do what? So that the Senator from North Carolina can 
get his wish and the First Lady is going to come before the Senate 
committee. After the Clintons have been exonerated in a $3 million 
study by Jay Stephens, our Republican former U.S. attorney.

  Madam President, I was not on the floor when the Senator from Alabama 
spoke, Senator Shelby, but I understand that he took quotes from 
Richard Nixon and Bill Clinton, and the whole implication is that--it 
is not hard to get to the bottom line --this is terrible, and this is 
going to result in the President resigning. That is the implication. 
Well, I have to say, we have seen more smoking guns in this 
investigation than I ever saw in a cowboy movie.
  Smoking gun No. 1: Jean Lewis' testimony--this was their star. She 
was billed as their star, and she came before us to show how the 
administration has muzzled her investigation. As it turns out, her 
appearance only showed, in my view, how biased her investigation was. 
She even planned to profit from it by going into the T-shirt business. 
It was embarrassing to think of a professional woman, who was their 
star, who took phone calls about her T-shirt business in her office. 
This was their star. By the way, she said her tape recorder went on by 
itself, miraculously, and she taped, without her knowing, a woman from 
the RTC, and then she gave that tape over to the committee to show this 
other smoking gun which turned out to be not very much.
  We also learned in that questioning period that this woman had a bias 
against the President. Oh, that caused a big brouhaha. She had written 
about the President in a negative fashion, in an obscene fashion, right 
before she made the referrals, which named the Clintons as possible 
witnesses. That is the number-one smoking gun, the No. 1 star of their 
show.
  The second smoking gun: The letter from the President's lawyer--
  Oh, I must say, sadly, Miss Lewis got ill in front of the committee. 
I hope she is better now, I really do. But I was not finished with my 
questioning. I do not know if I will ever have a chance to continue it 
because I had a lot more questions. But she became ill, clearly, and 
had to leave.

  The second smoking gun: The letter from the President's lawyer, David 
Kendall, to the Rose firm attaching three Madison Guaranty files. Our 
committee chairman, in a public hearing, called the letter a ``smoking 
gun,'' in his words, alleging that the attached files were likely taken 
from the White House office of Vince Foster. Mr. Kendall testified that 
he had not gotten the files at all from Vince Foster's office.
  The third smoking gun: The Small Business Administration's 
mishandling of the David Hale matter. That has been referred to by my 
friend from North Carolina.
  Another smoking gun was the allegation that the SBA delayed the 
investigation of David Hale's misuse of SBA money. Well, my goodness, 
what did the testimony show? Not only did the SBA move forward 
aggressively, under Erskine-Boles, with the investigation, but Hale was 
indicted in record time--in record time--leading some members of the 
committee to say that is a model for all administrations to follow 
because the administrator knew that David Hale, who knew the President 
and the First Lady, was from Arkansas, and he said, go after them, and 
they did.
  Smoking gun No. 4: The secret telephone number called by the First 
Lady the night of the Foster suicide. This hung out there in the press. 
Who did she call? A secret number. Nobody knows. The telephone company 
did not know. No one knew. The investigative team could not find out. 
Well, it was a big smoking gun. It was a phone number that was used 
when the White House switchboard was overloaded. It was a White House 
switchboard number. And the testimony from Bill Burton, who spoke to 
the First Lady, was exactly this: The First Lady called him at the 
specific time that the committee was after, and said, ``Please make 
sure that Vince Foster's mother is told this news in the most caring 
way, with her minister present, so that she does not learn of it 
through news reports.'' That was smoking gun No. 4. Maybe having a 
compassionate First Lady is a bad thing. I happen to think it is a good 
thing.

  Smoking gun No. 5, the Jay Stephens report. There we were again. What 
is going to happen with this civil investigation? Are we going to see 
that the Clintons spent a lot of time with Whitewater?
  Madam President, $3.6 million smoking gun. Well, it just came out. 
They said Whitewater had cost Madison Guaranty a minimal amount of 
$60,000 to $150,000. At most, there was a $60 million loss to the 
institution. The Clintons, as far as they could tell, did not know much 
about Whitewater, and there was no case. Do not proceed.
  Now we come to smoking gun No. 6, and nearing the end of my comments 
today, the notes of White House counsel William Kennedy. The notes were 
taken when the President's lawyers met together when they were handing 
over the information to the private attorney. The undercurrent that has 
been out there is the President has something to hide, except for one 
thing. They are ready to hand over the papers. They are ready to hand 
over the papers. First, they had five conditions. They are down to one 
condition. Down to one condition. We have agreed with that condition in 
a bipartisan fashion. We think the independent counsel has, although we 
have not confirmed it. That is our belief. Which leaves the House.
  Now I know those people over in the House, and I like them. I think 
we ought to talk to them face to face and get them to understand that 
by taking the position they are taking, we are not going to get the 
papers.
  Why do we want to have a court fight that would set a bad precedent? 
It does not make sense. All individuals have an attorney-client 
privilege. It does not matter whether you are the poorest of the poor, 
the richest of the rich, the most powerful or the least powerful. That 
is what is so great about our country. We do not go on political witch 
hunts and deny people their rights.
  In this U.S. Senate in the Ethics Committee on the Packwood case, 
Republicans and Democrats together said that the attorney-client 
privilege for Bob Packwood must take precedence. So I have got to be a 
little surprised when that occurs in the Ethics Committee, and we are 
bipartisan, and suddenly here we are splitting into Democrats and 
Republicans. That is bad for this institution. It is bad for this 
investigation. It is bad for the precedence of the United States. 
Frankly, I think it is bad for individual Senators. 

[[Page S18961]]

  Who knows some day when one of us might say, I do not want people to 
see the private notes of my attorney on a divorce. I do not want 
someone to see the private notes of my attorney in a child custody 
case, or an ethics proceeding, or any kind of matter where we may be 
involved.

  We should stand together on the principle as we did in the Packwood 
case, and we know emotions were running high in that case, but we did 
not invade that attorney-client privilege, as our ranking member, 
Senator Sarbanes, has pointed out far more eloquently than I because I 
am not a lawyer. I am just trying to bring some common sense to the 
discussion and to move along the process of the committee's work and 
getting the notes that we want to get.
  I think we should send the resolution back to the committee with 
instructions to consider all reasonable ways of obtaining the notes. I 
think that we can do it. I have seen my chairman and my ranking member 
team up and be very persuasive, and I think if they teamed up on this 
and they sat down with their counterparts in the House, we could 
resolve this in a moment's time. That is the faith I have in their 
ability to work together.
  The bottom line is, do you want to get the notes or do you want to 
play politics? That is the way I see it. I hope we decide we want to 
get the notes, we want to do it in a way that keeps this committee 
working in a bipartisan fashion because, frankly, if we do not stick 
together on this, on the procedures, I think the American people are 
going to think this is all politics and all the hard work that we do to 
put light on this subject will simply not be respected.
  Thank you. I yield the floor.
  Mr. HATCH. Madam President.
  Mr. FAIRCLOTH. Will the Senator yield?
  Mr. HATCH. Without losing my right to the floor, and I ask unanimous 
consent in that regard.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FAIRCLOTH. Very briefly, I reply to the honorable Senator from 
California. I do not intend to get into a point-by-point debate.
  Mrs. Clinton has admitted while Jim McDougal was on trial in 1990, 
she took over Whitewater affairs. She even sought power of attorney in 
1988. In fact, the Clintons have all of the Whitewater documents. They 
were so active that they had to turn back boxes of documents to Jim 
McDougal so he could do the return.
  Finally, the reason Pillsbury Madison might have said there was no 
wrongdoing, they simply do not have the information that has been 
available to this committee and will be available to the committee.

  To answer one three-line quote, and I am quoting Mrs. Clinton as to 
her involvement in Whitewater, her words:

       Because my husband was a fourth owner of Whitewater 
     Development Company while he was actually occupied as 
     Governor of Arkansas, it fell to me to take certain steps to 
     attempt to assure that Whitewater Development Corporation 
     affairs were properly conducted and that they complied with 
     the law.

  If that does not involve her, I do not know what does. I thank the 
Senator from California.
  Mrs. BOXER. If the Senator would yield for 30 seconds.
  Mr. HATCH. Under the same unanimous-consent request.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. BOXER. I say to my friend from North Carolina, and I respect his 
right to hold any view he wishes, what he said is, essentially, that he 
does not agree with the conclusion of this report.
  I just want to reiterate, Madam President, that $3 million was spent 
on it. It was headed by a very well-respected Republican former U.S. 
attorney, James Jay Stephens. Clearly, it says, ``The evidence does not 
suggest the Clintons had managerial control of the enterprise or even 
received annual reports or financial summaries. Instead, the main 
contact seems to consist of signing loans and renewals.''
  To suggest some 3-point-some million dollars they spent here did not 
give them the information they need is, really, it seems to me, an 
indirect hit at Mr. Stephens and Pillsbury Madison & Sutro. I take 
great pride in that law firm because that is in San Francisco. I think 
the facts do not bear out the intentions.
  Mr. BYRD. Madam President, the distinguished Senator from Utah was on 
the floor before I was here. It is not a great matter of importance 
that I speak immediately, but I do have some other things that are 
going to demand my attention later. I wonder if the distinguished 
Senator from Utah could tell me how long he might be speaking?
  Mr. HATCH. I do not believe I will be very long, and I am happy to 
yield to my distinguished colleague, but I ask unanimous consent that 
he be permitted to speak immediately following my remarks, which should 
not be too long.
  Mr. BYRD. That would be very fine.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. I thank the distinguished Senator for his characteristic 
courtesy. Could he tell me about when he might end?
  Mr. HATCH. I do not think I will be much more than 15 minutes. Pretty 
close to 3 o'clock, maybe a little less than that.
  Mr. BYRD. I hope the Senator will not hurry.
  Mr. HATCH. I appreciate my colleague. I am happy to yield to him.
  Mr. SARBANES. If the Senator would yield, given the agreement, maybe 
we could even put in a quorum call if it catches the Senator from West 
Virginia unaware at the conclusion of the time. I am sure that is 
agreeable to the chairman.
  Mr. D'AMATO. Why do we not say--we have been trying to work this back 
and forth, and certainly the Senator from West Virginia would be 
recognized, and if he needs an opportunity to come to the floor, and I 
make an observation I would yield immediately. Why do we not just keep 
it at that, and he will be recognized thereafter or as soon as he comes 
to the floor.
  Mr. BYRD. I thank the Senator from New York and I thank the Senator 
from Maryland.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. I appreciate the action of my friend from West Virginia 
because I know how busy he is, as all of us are, and my friends who are 
managing this bill. I think I would always yield to him, if I could. 
But he has been gracious enough to ask me to go forward.
  It has been implied in this debate that I have been listening to that 
the Whitewater investigation has been a waste, that it has been too 
costly and too expensive. I have to say, I did not hear the same 
arguments during the Iran-contra problem. But let me say, I would note 
that the Whitewater investigation has resulted in five indictments, 
including the indictment of a sitting Governor, and nine guilty pleas 
so far.
  We have also seen the No. 3 person at the Justice Department go to 
Federal prison. I personally feel badly about that because I liked him 
very much. I still like him very much and I am sorry he has had that 
difficulty. But I have to say, it shows that the Whitewater 
investigation has not been in vain, that it has been extremely 
important.
  Frankly, the investigation is not complete. I wonder how much all of 
that work is worth to the country. It seems to me the American people 
would want to investigate wrongdoing. I think the record shows that the 
independent counsel is moving ahead in an appropriate manner. And I 
believe the distinguished committee on White-water is moving ahead very 
well, too. I commend the two leaders, Senators D'Amato and Sarbanes, 
for the good way that they worked together and the tremendous amount of 
work they have done on this--plus their counsel. Their respective 
counsel have been as good as any I have ever seen.
  Having said that, Madam President, I rise in support of the 
resolution to authorize enforcement of the subpoena to obtain notes 
from a White House meeting concerning Whitewater. I do not take this 
step lightly, however. As chairman of the Judiciary Committee, I see it 
as my duty to defend the prerogatives of the executive branch and the 
separation of powers. Indeed, I recognize that the executive branch has 
a right to confidential communications regarding its core functions. 
After giving this issue careful thought and consideration, however, I 
have decided that enforcing the subpoena is the proper course of action 
to take. This 

[[Page S18962]]
issue transcends claims of partisanship and goes to the very 
constitutional authority of Congress to investigate wrongdoing at the 
highest levels of Government.

  The Senate has a constitutional obligation to conduct oversight 
hearings. It is a duty we must not surrender. The President has refused 
to comply with a legitimate request to obtain information relating to 
Whitewater. After President Clinton's initial refusal to provide the 
meeting notes, the Special Whitewater Committee took the wholly 
appropriate step of subpoenaing the notes. It is unfortunate that the 
President has chosen to resist the congressional subpoena. Not only has 
President Clinton defied a Congress that is in good faith attempting to 
investigate a matter of great public concern, he has chosen to do so by 
hiding behind a questionable claim of attorney-client privilege.
  I would like to review the claim of privilege the President is 
asserting and explain to the American people why it is simply not 
credible.
  First, the President not only claims that the November 5 Whitewater 
meeting is cloaked in attorney-client privilege, but that the privilege 
applies against Congress. No Congress in history, however, has 
recognized the existence of a common-law privilege that trumps the 
constitutionally authorized investigatory powers of Congress. While 
Congress has chosen, as a matter of discretion, to permit clear, 
legitimate claims of privilege, it has never allowed its constitutional 
authority to investigate wrongdoing in the executive branch to be 
undermined by universal recognition of the attorney-client privilege. 
As Senator Sarbanes has noted, we have chosen, in our discretion, to 
recognize the privilege with respect to some of the witnesses who have 
testified before the Committee.
  The attorney-client privilege exists as only a narrow exception to 
broad rules of disclosure. And the privilege exists only as a statutory 
creation, or by operation of State common law. No statute or Senate or 
House rule applies the attorney-client privilege to Congress. In fact, 
both the Senate and the House have explicitly refused to formally 
include the privilege in their rules. As the Clerk of the House stated 
in a memorandum opinion in 1985: ``attorney-client privilege cannot be 
claimed as a matter of right before a congressional committee.'' The 
attorney-client privilege is a rule of evidence that generally applies 
only in court; it does not apply to Congress which, under article I, 
section 5 of the Constitution, has the sole authority to ``determine 
the Rules of its Proceedings.''
  The historical practice of congressional committees has borne this 
out. As Joseph diGenova, a special counsel and former U.S. attorney, 
has pointed out in an article in today's Wall Street Journal, as early 
as in the 19th century investigation of the Credit Mobilier scandal, 
Congress clearly refused to recognize attorney-client privilege. 
Indeed, in 1934, Senator Hugo Black, later one of the Supreme Court's 
great liberal justices, as chairman of a committee refused to recognize 
the privilege. As recently as 1986, a House subcommittee, Committee on 
Foreign Affairs, Subcommittee on Asian and Pacific Affairs, took pains 
to note that it need not recognize the privilege asserted by 
individuals involved in setting up a web of dummy corporations for the 
Marcos family.

  This body cannot simply take the President's claim of privilege 
against Congress at face value. To do so would be to surrender an 
important constitutional obligation. We can not compromise the ability 
of the Congress to conduct investigatory hearings. I ask my colleagues 
on the other side of the aisle to place partisan politics aside and to 
support the institutional integrity of this body.
  Second, the President has stated that he is merely asserting the type 
of attorney-client privilege that any American would claim with respect 
to his or her own attorney. I do not think that any of us would 
disagree that Mr. Clinton, as a private citizen dealing with personal 
legal troubles, has a claim of attorney-client privilege. That goes 
without saying. Certainly with regard to Mr. Kendall, his personal 
attorney.
  The problem, however, is that we do not have an ordinary citizen 
here, nor are we in a court of law. An ordinary citizen does not 
supervise the law enforcement resources of the Federal Government; an 
ordinary citizen does not appoint or fire U.S. attorneys; an ordinary 
citizen does not direct the FBI; an ordinary citizen does not control 
IRS or the RTC. An ordinary citizen is not in the position to interfere 
with the legitimate law enforcement investigation of his own 
activities.
  Indeed, President Richard Nixon did not assert attorney-client 
privilege. What would have happened if President Nixon had attempted to 
use the privilege to prevent White House counsel John Dean from 
testifying? That is essentially what is happening now. Even during the 
so-called Iran-Contra affair, Department of Justice lawyers concluded 
that the privilege could only be claimed by lawyers preparing for 
litigation, not preparing for congressional inquiries. Although the 
committee recognized attorney-client privilege for Oliver North and 
certain others, it did so only as a matter of discretion, which the 
committee has a right to do.
  Thus, if we are going to recognize any attorney-client privilege of 
the President, we do so at our discretion. Now, in general I would be 
willing to recognize the privilege when it validly exists. Here, 
however, it clearly does not, and so Congress must issue the resolution 
to enforce the subpoena.
  Courts recognize the privilege only for communications between a 
client and his attorney for the purpose of providing legal advice. It 
makes perfect sense that a person would be able to discuss legal 
matters with his or her lawyer that should not be revealed in court or 
to the opposing side. That is a well-established principle we can all 
agree with.
  I, as well as legal experts such as former U.S. Attorney General 
William Barr, former U.S. Attorney Joseph diGenova, and Prof. Ronald 
Rotunda fail to see how Mr. Clinton can assert privilege over the 
November 1993 meeting. It is hard for me to understand how advice about 
a private legal matter could be given at a meeting where neither the 
President nor the First Lady were present.
  An additional problem is that in addition to Mr. Kennedy and Mr. 
Kendall, other lawyers were at the meeting who represented the 
President in his official capacity. These White House lawyers had a 
duty to represent the American people as well as the Office of the 
President. It would be a violation of the basic ethical rules for 
Government lawyers to work on private legal matters for the President. 
A memo from the President's personal lawyers at Williams & Connolly 
concedes that each group of lawyers--the Government lawyers and the 
private lawyers--had a different client: the Government lawyers 
represented the Office of the President and the U.S. Government, the 
private lawyers represented the President in his personal capacity. 
Since they are representing different entities, they cannot share the 
same attorney-client privilege.
  The administration responds to this straightforward legal point by 
drawing an analogy to the common-interest privilege that is given to 
coconspirators who are permitted to share advice and information in 
preparing a joint defense. This analogy collapses upon close 
examination. The supposed common interest is that both clients 
represented at the November 5 meeting--the Clintons in their private 
capacity and the Office of the President--faced adversarial legal 
proceedings. But in this setting, the only possible adversary for the 
Clintons is the U.S. Government, and one group of lawyers at the 
November 5 meeting--those representing the Office of the President, 
represent the U.S. Government, and were on the payroll of the U.S. 
Government.
  Therefore, the U.S. Government and those lawyers who represented it 
could not possibly have a common interest with the Clintons in 
thwarting or defending against adversarial legal proceedings brought or 
potentially to be brought by the U.S. Government against the Clintons 
in their private capacities. In fact, the lawyers from the White House 
Counsel's Office represented the only possible adversaries of the 
President, and therefore there could not have been a common interest 
between the two groups of lawyers.
  In fact, there is no claim that Whitewater involves the Office of the 
President; the issues should not involve the Presidency at all. At the 

[[Page S18963]]
time that the Whitewater affair occurred, Mr. Clinton was not even 
President. It is hard to say that the Office of the Presidency was 
facing any adversary, with whom it would need to coordinate a common 
defense.
  The White House, in a memorandum provided to the special committee, 
claims that this was a meeting in which the President's former private 
attorney, Mr. Kennedy, was handing off information to his newly 
retained counsel, Mr. Kendall. The White House's lawyers claim that 
they were serving necessary and important public interests at the 
meeting, and that they were at the meeting to ``impart information that 
had been provided to them in the course of official duties.'' What 
information was imparted? Surely the transmission of Government 
information to private attorneys is not protected by the attorney-
client privilege.
  I am deeply troubled by the fact that White House lawyers were 
present at this meeting. After all, these lawyers do not represent the 
President in his personal capacity. I am concerned about the 
possibility that Government lawyers, who have an obligation to the 
American people, as well as to the President, may have passed 
information to the Clinton's personal lawyers that the White House 
Counsel's Office may have gained through their official capacities. Is 
it the proper role of Government officials to act as messengers for Mr. 
Clinton in his private capacity to the President's private lawyers?
  These lawyers were discussing Whitewater matters that were being 
investigated by the Department of Justice and the RTC--legal matters 
that would place Mr. Clinton in an adverse position to the U.S. 
Government. Essentially, Mr. Clinton is claiming attorney-client 
privilege over a meeting in which Government lawyers may have been 
involved in a strategy session to frustrate investigations conducted by 
other parts of the executive branch. I hope that nothing occurred 
during the meeting that would in any way sully the Office of the 
President. But to find out whether anything illegal occurred, the 
President must disclose the notes.

  It is also likely that even if a privilege may have existed, it was 
waived. After all, Bruce Lindsey, who did not serve in the White House 
Counsel's Office at this time, but rather served in the White House 
Personnel Office, was at the meeting. He was not legal counsel to the 
President in either a personal or a professional capacity. To say that 
he represented the Office of the President as legal counsel at this 
meeting is dubious at best. Information discussed in his presence thus 
would constitute a waiver of the privilege. Were this legal fiction to 
survive judicial review, virtually any discussions or conspiracies 
involving lawyers could be claimed as privileges.
  In order to avoid the brewing constitutional confrontation that will 
arise when this issue goes to court, I call upon the President to 
release the notes of the November 5 meeting now. It is in the best 
interests of the President, of the Congress, and, indeed, of the 
American people, for all the information concerning Whitewater to come 
out into the open. As Justice Louis Bradeis put so succinctly: 
``Sunlight is the best of disinfectants.'' By being forthcoming with 
the American people, President Clinton can begin to put Whitewater 
behind this administration. While we must, in my opinion, vote today to 
enforce the subpoena, I would hope that we will not ultimately have to 
resolve this dispute in court. I would hope that the President would do 
as he has long promised: fully comply with the investigation into the 
Whitewater affair.
  Having said all of that, again I note that this has not been a waste 
of time--the work these two leaders on the committee have done, the 
work the special counsel has done which has resulted in five 
indictments, nine guilty pleas, and the imprisonment of one of our top 
Justice Department officials.
  I think those facts alone justify the work that the distinguished 
chairman of this committee has been trying to do.
  So I want to commend him for the work he is doing, and I want to 
commend all members of committee for the attention that they have given 
to this work. And I hope that some of the comments that I have made 
will help on this matter.
  I yield the floor.
  Mr. D'AMATO. Madam President, let me, before Senator Byrd comes to 
the floor, first of all thank the Senator from Utah who also in his 
capacity as chairman of the Judiciary Committee has a keen insight, has 
been here and understands this area that sometimes might be somewhat 
difficult for people to grasp. But I think in the summation he went 
right to the heart of this matter. It is a matter of the President of 
the United States keeping faith with his commitment to the people, a 
matter of the President of the United States, President Clinton, 
keeping faith not only with the people but indeed with the Congress and 
the Senate. It is a matter of the President of the United States 
keeping faith with the commitment that he made on March 8. On March 8, 
1994, the President held a press conference in connection with the 
appointment of Lloyd Cutler as interim White House counsel. During that 
press conference the President was asked about the possibility of 
asserting Executive privilege, and he gave a response. He said:

       It is hard for me to imagine a circumstance in which that 
     would be the appropriate thing for me to do.

  Madam President, once again, the President has an opportunity to keep 
his commitment. It is not good enough to say one thing and to do 
another. It is not good enough to promise us cooperation and then hide 
behind technicalities. It is not good enough to say that I will produce 
everything that I can to be cooperative and getting to the bottom of 
this matter, and then assert privilege--and then put conditions on it 
and do it in a manner in which we are forced to come to this floor.
  So I would hope that irrespective of the votes that we take, 
irrespective of our positions, that the President would come forward--
and come forward now and make those notes available. People have a 
right to know the Congress has a right to know, and we have worked in 
the cooperative effort to avoid this. It is only because of the 
necessity to see to it that we get this information in a timely way, 
that we have taken this extraordinary action.
  So I agree with Senator Hatch. The duty and the obligation is not 
upon this Senate. We should not have to be compelling this. It should 
be President of the United States who steps forward and who keeps his 
commitment; a commitment that right now he is failing to observe, a 
promise that has been made, a promise that has been made but a promise 
that has not been kept.
  Mr. SARBANES. Will the chairman yield?
  Mr. D'AMATO. I certainly will. I note that we are awaiting Senator 
Byrd because he is the next scheduled person, but certainly I will 
yield. Have we made inquiry? Has the Senator been advised?
  Mr. SARBANES. We have sent a message to him and he is on his way, is 
what I am told.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. SARBANES. Madam President, I ask unanimous consent to have 
printed in the Record at this point, in light of the comments we just 
heard, a letter to Chairman D'Amato from Jane Sherburne, special 
counsel to the President.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                              The White House,

                                    Washington, December 20, 1995.
     Hon. Alfonse M. D'Amato,
     Chairman, U.S. Senate, Special Committee to Investigate 
         Whitewater Development Corporation and Related Matters, 
         Washington, DC.
       Dear Chairman D'Amato: As I informed you yesterday we 
     would, Counsel for the President have undertaken to secure 
     non-waiver agreements from the various entities with an 
     investigative interest in Whitewater-Madison matters. I 
     requested an opportunity to meet with your staff to determine 
     how we might work together to facilitate this process. Mr. 
     Chertoff declined to meet.
       Nonetheless, we have succeeded in reaching an understanding 
     with the Independent Counsel that he will not argue that 
     turning over the Kennedy notes waives the attorney-client 
     privilege claimed by the President. With this agreement in 
     hand, the only thing standing in the way of giving these 
     notes to your Committee, is the unwillingness of Republican 
     House Chairmen similarly to agree. As I am sure you are 
     aware, two of the Committee Chairmen who have asserted 
     jurisdiction over Whitewater matters in the House have 
     rejected our request that the House 

[[Page S18964]]
     also enter a non-waiver agreement with respect to disclosure of these 
     notes and related testimony.
       We have said all along that we are prepared to make the 
     notes public; that all we need is an assurance that other 
     investigative bodies will not use this as an excuse to deny 
     the President the right to lawyer confidentiality that all 
     Americans enjoy. The response of the House Committee Chairmen 
     suggests our concern has been well-founded.
       If your primary objective in pursuing this exercise is to 
     obtain the notes, we need to work together to achieve that 
     result. You earlier stated that you were willing to urge the 
     Independent Counsel to go along with a non-waiver agreement. 
     We ask that you do the same with your Republican colleagues 
     in the House. Be assured: as soon as we secure an agreement 
     from the House, we will give the notes to the Committee.
       Mr. Chertoff has informed me that the Committee will not 
     acknowledge that a reasonable claim of privilege has been 
     asserted with respect to confidential communications between 
     the President's personal lawyer and White House officials 
     acting as lawyers for the President. In view of the 
     overwhelming support expressed by legal scholars and experts 
     for the White House position on this subject, we are prepared 
     simply to agree to disagree with the Committee on this point.
       Accordingly, the only remaining obstacle to resolution of 
     this matter is the House.
           Sincerely yours,

                                            Jane C. Sherburne,

                                            Special Counsel to the
                                                        President.

  Mr. SARBANES. I thank the Chair.
  She indicates in the letter that the President is prepared to turn 
over these notes as soon as they can achieve a formal waiver agreement 
with the House. They have such an agreement with our committee. We have 
indicated that is acceptable to us. And they apparently reached such an 
understanding with the independent counsel. In fact, this letters says:

       We have succeeded in reaching an understanding with the 
     independent counsel that he will not argue that turning over 
     the Kennedy notes waives the attorney-client privilege 
     claimed by the President. With this agreement in hand, the 
     only thing standing in the way of giving these notes to your 
     committee is the unwillingness of Republican House chairmen 
     similarly to agree.

  I understand they are going to be meeting with the House chairmen 
this afternoon, and hopefully out of that an understanding can be 
reached because the White House has indicated they are prepared to turn 
these notes over if they can get these agreements. They have an 
understanding with our committee; they have an understanding with the 
independent counsel, and the other relevant body where they need an 
understanding is with the House committees. And I gather that matter is 
being worked on, and hopefully it will be worked on in a successful 
way.
  So I just wanted to enter this letter into the Record and make those 
comments in light of the observations that were just made.
  I notice that Senator Byrd is in the Chamber.
  I would like to say to the chairman, I take it Senator Grams would 
seek recognition next, is that correct, after Senator Byrd?
  Mr. D'AMATO. Correct. Yes.
  Mr. SARBANES. Could we then recognize Senator Leahy after Senator 
Grams?
  Mr. D'AMATO. Certainly.
  Mr. SARBANES. I ask unanimous consent that following Senator Byrd, 
Senator Grams be recognized and following Senator Grams, Senator Leahy 
be recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. D'AMATO addressed the Chair.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. D'AMATO. If I might intrude for 30 seconds upon my friend and 
colleague from West Virginia, I think it is important to note I 
mentioned that on March 8 the President had a press conference made in 
connection with the appointment of Lloyd Cutler and specifically as it 
related to the question of bringing up privilege said it was hard for 
him to imagine any circumstance which would be appropriate.
  That this took place almost 4 months to the day after, 4 months and 3 
days after this meeting, it is inconceivable that the President was not 
aware of this meeting where his personal attorneys were in attendance. 
So this is not a question--it seems to me this would not be an 
extraordinary circumstance. This was the circumstance and the fact he 
was aware of when he indicated that he would not raise the issue of 
privilege.
  I just thought it was important to note that for the Record. I yield 
the floor.
  Mr. BYRD addressed the Chair.
  The PRESIDING OFFICER (Mr. Gorton). The Senator from West Virginia is 
recognized under the previous order.
  Mr. BYRD. Mr. President, I thank the Chair.
  Mr. President, has the Pastore rule run its course?
  The PRESIDING OFFICER. The Pastore rule has run its course.
  Mr. BYRD. I thank the Chair. Then I shall speak out of order, that 
being my privilege, in view of the fact that there is no controlled 
time at the moment.
  Mr. President, I speak today with apologies to the two managers of 
the pending resolution.
  Mr. President, I should also state to Senators that I expect to speak 
for no less than 45 minutes.

                          ____________________