[Congressional Record Volume 141, Number 205 (Wednesday, December 20, 1995)]
[Senate]
[Pages S18971-S18974]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       DIRECTING THE SENATE LEGAL COUNSEL TO BRING A CIVIL ACTION

  The Senate continued with the consideration of the resolution.
  Mr. SIMON. Mr. President, I rise on the subject that the Presiding 
Officer knows more about than I do, because he has had to sit through 
all these Whitewater hearings. I have been designated by the Judiciary 
Committee as a Democrat to sit on that hearing along with Senator Hatch 
being designated by the Republicans from the Judiciary Committee.
  What do we do? I think whenever--it really is kind of related to what 
we have just been talking about--whenever we can work things out 
without confrontation, I think we are better off in this body, and the 
Nation is better off.
  I really believe the White House has gone about as far as they can go 
without just giving up completely on this constitutional right that 
people have in terms of the lawyer-client relationship.
  I am also concerned about the amount of time that we are taking on 
this question. I cast one of three votes against creating the 
committee. Senator Glenn, who is on the floor, cast one and Senator 
Bingaman, who is on the floor, cast one. My feeling was, we were going 
to get preoccupied and spend a lot of time on something that really did 
not merit that amount of time.
  We have spent infinitely more time: 32 days of hearings, as the 
Presiding Officer knows better than I, on this; 152 individuals have 
been deposed; the White House has produced more than 15,000 pages of 
documents; and Williams & Connolly, the President's personal attorney, 
has produced more than 28,000 pages of documents. We have spent a huge 
amount of time.
  We have spent much more time on Whitewater in hearings than we spent 
on health care in hearings last year on an issue infinitely more 
important to the people of this country; much more time on Whitewater 
than on hearings on drugs, for example. We may have had 2 or 3 days of 
hearings on drugs this year. I do not know. It certainly is not more 
than that. We have had 1 day of hearings so far this year on Medicare.
  I think when we spend huge amounts of time on this, we distort what 
happens in our country. I read the excellent autobiography of the 
Presiding Officer, Senator D'Amato, and unlike a lot of autobiographies 
that are obviously written by someone else, it is pure vintage Al 
D'Amato. But I know Al D'Amato, our distinguished colleague, represents 
a State with a lot of poverty. We have spent infinitely more time on 
this issue than we have spent on the issue of poverty in our country. 
Mr. President, 24 percent of our children live in poverty. No other 
Western industrialized nation has anything close to that.
  I hope we use the telephone a little more frequently, get together a 
little more and see if we cannot work this thing out without 
confrontation. I think everyone benefits.
  Let me add one final thing. I am 67 years old now. I have been around 
long enough to know that when we get into these things, we really do 
not know the ultimate consequences. It is like throwing a boomerang: It 
may hit here, it may hit there, it may hit somewhere else.
  I hope this resolution is turned down and the alternative of Senator 
Sarbanes is approved. But I am a political realist. I know that is not 
likely to happen, because of the partisan kind of confrontation that 
has occurred and is occurring in this body much too much. But I hope we 
try, once this gets over, to pull our rhetoric down, and I think all of 
us benefit when that happens.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. THOMPSON. Mr. President, I want to thank the Senator from 
Illinois for his eloquent and heartfelt remarks. He has the admiration 
of us all. He is going to be missed in this institution.
  Mr. President, I would like to speak for a few minutes with regard to 
the issue at hand having to do with the subpoena and the President's 
claim of privilege to resist that subpoena.
  I have been called upon over the past several weeks and months on 
many occasions, by members of the media, and others, to comment on the 
Whitewater investigation, to give my opinion. Others have, too, I am 
sure. In my case, I was minority counsel to the Watergate committee 
many years ago. People want to draw those comparisons.
  I refuse to make those comparisons. I do not think it is appropriate 
to make those comparisons. In fact, I have said as little as possible 
about the whole matter. I left town as a much younger man, having spent 
a year and a half investigating Watergate, and I had been on another 
committee assignment or two as counsel to the U.S. Senate. Some time 
ago, I kind of became tired of investigating and, frankly, would like 
to spend more of my time in trying to build things up than in trying to 
appear to be trying to tear things down.
  I think there is something important going on here that has to be 
commented upon with regard to the issue at hand. It looks like perhaps 
something might be worked out with regard to this particular subpoena, 
with regard to the particular notes that are being sought by this 
subpoena, and I hope that is the case. But there is something more 
important that is happening here that is going to have ramifications, I 
am afraid, for the next several months in this body and in this 
country, and that is, we should not get so caught up in the fine print 
and lose sight of the fact that, once again, we have a President who is 
claiming privilege to shield information from a committee of the U.S. 
Senate and ultimately from the American people, and it is a very, very 
weak claim at best. But even if it were a strong claim, Mr. President, 
it concerns me greatly that the President, under these circumstances, 
with the history that we have in this country of congressional 

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investigations and the obvious need that the Congress has and 
congressional committees have for information to get to the bottom of 
any perceived wrongdoing, that the President would choose to stand 
behind a privilege to keep this information from coming out.
  It cannot stand. It cannot be successful. I have watched the 
predicament that is unfolding in the Senate with increasing concern, 
thinking any day that it might be resolved, but by resisting this 
subpoena and trying to keep this information from the public, I believe 
the President is making a tragic mistake. His action will only serve to 
raise questions as to what is being hidden. It will keep this 
investigation alive much longer than it otherwise would. It will fuel 
the cynicism of a public that is already all too distrustful of its 
public institutions. And for what purpose?

  The White House says that the President is taking this position in 
order to defend a principle, and that principle is the President's 
right to private conversations with his attorney. But nobody is 
disputing that right. What is being disputed is the President's right 
to privileged conversations with lawyers who are Government officials 
paid by the taxpayers when the matters involved are personal in nature 
and do not have to do with the Presidency.
  This assertion of the attorney-client privilege by ordinary citizens 
in the face of congressional subpoenas have been consistently struck 
down by this Nation's courts. The privilege is designed, basically, for 
litigation between private parties. In case after case, the courts have 
concluded that allowing it to be used against Congress would be an 
impediment to Congress' obligation and duty to get to the truth and 
carry out its investigative and oversight responsibilities.
  If the President is claiming special status because he is President, 
then his assertion is really one of executive privilege and not 
attorney-client privilege. While I can still remember Sam Ervin's 
repeated admonitions that no man is above the law and that we are 
entitled to every man's evidence, I still concede that executive 
privilege can be a valid claim, under some circumstances. However, the 
President must assert it.
  As I understand it to this point, he has chosen not to assert 
executive privilege. Of course, there may be political consequences 
associated with the claim of executive privilege, but the President 
cannot have it both ways. He cannot assert attorney-client privilege as 
a defense to a congressional subpoena which, if asserted by a private 
citizen, would stand little chance of prevailing, and then try to place 
the shroud of the Presidency around it without claiming Executive 
privilege.
  As best I can tell, Mr. President, no President in history has ever 
claimed attorney-client privilege to defeat a congressional subpoena.
  Richard Nixon did not claim attorney-client privilege. He allowed 
White House counsel, John Dean, to testify. Ronald Reagan did not claim 
attorney-client privilege during Iran-Contra. Notes and documents of 
his White House counsel were produced, along with those of the lawyer 
for the National Security Council, the lawyer for the Foreign 
Intelligence Advisory Board, and the lawyer for the Intelligence 
Oversight Board. In both of these investigations, those documents were 
produced without the claim of any sort of privilege.
  President Nixon finally claimed Executive privilege with regard to 
the White House tapes and, of course, ultimately saw his claim of 
privilege defeated in the Supreme Court in the case of U.S. versus 
Nixon. So if the President is going to assert greater privilege 
protection than any of his predecessors, perhaps he is doing it solely 
for the purpose of protecting a legal principle. But the President must 
understand that the people are going to assume that there may be other 
reasons, in light of this country's history.
  So let us examine the strength of the President's legal position. In 
the first place, an invocation of the attorney-client privilege is not 
binding on Congress. It is well established that in exercising its 
constitutional investigatory powers, Congress possesses discretionary 
control over witnesses' claims of privilege. It is also undisputed that 
Congress can exercise its discretion completely without regard to the 
approach that courts might take with respect to that same claim.
  In the 19th century, House committees refused to accede the claims of 
attorney-client privilege that developed from actions taken during the 
impeachment trial of Andrew Johnson and in the investigation of the 
Credit Mobilier scandal. House committees in the 1980's also rejected 
claims of attorney-client privilege. For example, in 1986, the House 
voted 352 to 34 to deny the privilege claims of Ferdinand Marcos' 
attorneys.
  The Senate, too, has rejected invocations of attorney-client 
privilege on numerous occasions. In 1989, the Subcommittee on Nuclear 
Regulation rejected the privilege claim with respect to its 
investigation of restrictive agreements between nuclear employers and 
employees who might impact safety.
  The subcommittee's formal opinion rejecting the claim of privilege 
asserted:

       We start with the jurisdictional proposition that this 
     Subcommittee possesses the authority to determine the 
     validity of any attorney-client privilege that is asserted 
     before the subcommittee. A committee's or subcommittee's 
     authority to review or compel testimony derives from the 
     constitutional authority of the Congress to conduct 
     investigations and take testimony as necessary to carry 
     out its legislative powers. As an independent branch of 
     government with such constitutional authority, the 
     Congress must necessarily have the independent authority 
     to determine the validity of non-constitutional 
     evidentiary privileges that are asserted before the 
     Congress.

  Importantly, as the Congressional Research Service found, ``No court 
has ever questioned the assertion of that prerogative * * *.'' Indeed, 
a 1990 Federal court decision, In the Matter of Provident Life & 
Accident Co., found that whatever a court might hold concerning 
application of a claim of attorney-client privilege in a court 
proceeding, ``is not of constitutional dimensions, [and] is certainly 
not binding on the Congress of the United States.'' Instead, 
committees, upon assertion of the privilege, have made a determination 
based on a ``weighing [of] the legislative need against any possible 
injury.''
  This longstanding history, Mr. President, of discretionary 
congressional acceptance of the attorney-client privilege reflects the 
basic differences between judicial and legislative spheres. The 
attorney-client privilege is not constitutionally based. It is a judge-
made doctrine based on policy considerations designed to foster a fair 
and effective adversary legal system. It theoretically promotes the 
interest of an individual facing an adversary civil or criminal action.
  But the U.S. Senate is not a court. We do not have the authority to 
make final determinations of legal rights, or to adjudicate 
individuals' liberty or property. In fact, it is probably 
unconstitutional under the separation of powers doctrine for us to be 
bound by judicially created common law rules of procedure. Under 
Article I, section 5 of the Constitution, each House determines its own 
rules. And the rule of this body in connection with attorney-client 
privilege claims is longstanding and consistent: We balance the 
legislative need for the information against any possible injury. And, 
of course, a committee of this body has made that determination.
  Does President Clinton want to rely on a technical, legal defense 
when the issue is whether his own White House has engaged in 
wrongdoing? The legislative need is obvious: to determine the truth of 
allegations of potential wrongdoing at the White House. Enforcing the 
subpoena furthers that interest. The integrity of the investigatory 
process is at stake here. The President's only potential interests are 
the free flow of information that is protected by Executive privilege, 
and the desire to shield what is potentially damaging information. To 
me, the balance is very clear: The subpoena must be complied with.

  Even if we were to abandon our historic discretionary consideration 
of attorney-client privilege in favor of adopting judicial rules for 
its application, we would still reject the objections to the subpoena. 
Courts would not find the attorney-client privilege to apply on these 
facts.
  Courts do not view the attorney-client privilege as a fundamental 
judicial 

[[Page S18973]]
procedural requirement that is vital for fairness. The most prominent 
expert on the law of privileges and evidence, Dean Wigmore, wrote of 
the attorney-client privilege the following: ``[i]ts benefits are all 
indirect and speculative, its obstruction is plain and concrete * * *. 
It is worth preserving for the sake of a general policy, but it is 
nonetheless an obstacle to the investigation of truth. It ought to be 
strictly confined within the narrowest possible limits consistent with 
the logic of its principle.'' The second, sixth, and seventh circuits 
have all adhered to that approach. Although the submissions by the 
White House counsel's office and the Clintons' private attorneys read 
the privilege very broadly, the courts construed it very narrowly.
  Courts universally require the party asserting the existence of the 
attorney-client privilege to bear the burden of establishing its 
existence. Blanket assertions of the privilege are rejected. The 
proponent must demonstrate conclusively that each element of the 
privilege is satisfied. This means that specific facts establishing an 
attorney-client privilege must be revealed. Conclusory assertions are 
not sufficient. And the proponent must also prove that the privilege 
has not been expressly, or by implication, waived.
  In this respect, it must be noted that courts have rejected the 
linchpin of the President's argument supporting the existence of an 
attorney-client privilege here. He claims that if the information 
requested by the subpoena were produced to the special committee, the 
privilege would be waived as to other conversations in other 
proceedings. But the U.S. Court of Appeals for the District of Columbia 
Circuit specifically has held to the contrary. In its 1979 decision 
Murphy versus Department of the Army, the court ruled that disclosure 
of allegedly privileged material to a congressional committee would not 
waive the privilege in any future litigation. As CRS notes, ``There 
appears to be no case holding otherwise, and several which have 
followed Murphy.''
  The President simply has not proven that the elements exist which are 
necessary to satisfy the attorney-client privilege. For courts to 
accept the privilege, the attorney must be acting as an attorney for 
the client and the communication at issue must be made for the purpose 
of securing legal services. That is not true here for two major 
reasons.

  First, attendees at the critical November 5 meeting, including 
individuals who were not acting as attorneys for President Clinton. 
Bruce Lindsey is a lawyer, but he did not act as the President's lawyer 
in this meeting. Nowhere in either the White House or Clinton personal 
lawyer submissions is any claim made that Mr. Lindsey passed 
communications from either the President or Mrs. Clinton to any other 
lawyer. Nowhere in his testimony before the special committee did Mr. 
Lindsey establish that he was present at this meeting as a lawyer for 
President Clinton or that he discussed confidential communications 
between himself and the Clintons.
  Several of those present were Government lawyers, including Mr. 
Kennedy, to whom the subpoena was directed, Mr. Nussbaum and Mr. 
Lindsey. And a Government lawyer cannot establish a personal 
representational relationship with the President about a private 
matter. In prior administrations, when the President had private legal 
issues, a private attorney was hired because the Government attorney 
could not raise the attorney-client privilege in the context of a 
Government investigation. That is the situation we have here. This was 
particularly true where the facts that were the subject of a Government 
investigation relate to the President's personal, not official, acts. 
Here, of course, the acts are not only personal, but predate President 
Clinton's assumption of the Office of the Presidency.
  So the discussion, by the President's own admission, concerned 
logistics, dividing responsibilities among different groups of lawyers, 
not providing legal advice. Such communications simply fall outside the 
scope of the attorney-client privilege. In fact, they are no different 
than any other communications among Presidential advisers. Their 
character is not changed by the fact that some of the participants have 
law degrees. Hence, to the extent that official Government business was 
discussed at this meeting, the only theory preventing its disclosure 
would be, again, executive privilege, which the President refused to 
invoke.
  Moreover, the communications at this meeting were made in the 
presence of persons who were not lawyers for President Clinton. Because 
the attorney-client privilege inhibits discovering truth, the courts 
are quick to find that the privilege has been waived. Where attorneys 
voluntarily disclose confidential client communications with a third 
party, the privilege is destroyed. The communication is no longer 
confidential and a justification for the privilege disappears. 
Confidentiality was lost for these communications because attorneys for 
the President shared information with others who did not represent the 
President. Lawyers cannot serve two masters. Those who represent the 
Government as a client do not represent the President as a client.
  For this reason, the President's claim of a joint defense privilege 
is not applicable. President Clinton raises this argument because he 
claims that the conversation of November 5 involved two clients: The 
President in his official capacity, and the President in his personal 
capacity. But these are not two different clients facing a common 
adversary. The President in his official capacity is represented by 
Government lawyers. A Government lawyer's client is the Government, and 
that client's interest may be to enforce the laws against the President 
as an individual. That is a different interest than that represented by 
the President's personal lawyers. Thus, these lawyers were potential 
adversaries, not lawyers sharing information for multiple clients 
against a common adversary.
  Additionally, courts have adopted the crime-fraud exception to the 
attorney-client privilege. Courts will not apply the privilege to 
communications that may facility the commission of improper acts. The 
notes that are the subject of the subpoena concern a meeting at which 
discussions may have been held about certain information that may have 
been improperly passed to private lawyers for purposes of preparing a 
defense.
  The work product privilege has also been raised, Mr. President, but 
it does not apply to this conversation, either. The attorney work 
product privilege is not constitutionally based and applies to Congress 
only on a discretionary basis. Further, it is qualified. It is not 
absolute. The sufficient showing of need will brush aside the work 
product privilege. The Clinton briefs quote broad generalities about 
the privilege, but as the Supreme Court held in Hickman v. Taylor, ``We 
do not mean to say that all [] materials obtained are prepared * * * 
with an eye toward litigation are necessarily free from discovery in 
all cases.'' The materials at issue were not prepared in anticipation 
of litigation on behalf of President Clinton. Mr. Kennedy was a 
Government lawyer. His notes could not have been taken in anticipation 
of preparing litigation strategy for President and Mrs. Clinton. His 
client was the Government, not the Clintons, therefore, work product 
privilege is simply inoperative.

  Even if this doctrine applied, it is readily overcome when production 
of material is important to the discovery of needed information. Some 
courts have even refused to call the doctrine a privilege. In short, 
Mr. President, President Clinton simply has not met the burden of 
showing that either of these privileges apply to the notes that are the 
subject of this subpoena. His legal position is unprecedented and 
extremely tenuous. Clearly, Congress does not have to honor such a 
position.
  I suggest to my colleagues on the other side of the aisle that we do 
not want to establish a precedent that says that future Presidents can 
use White House counsel with regard to personal matters or even matters 
that occurred before the President was elected and be shielded from 
congressional inquiry.
  With regard to the references to partisanship that we have read and 
heard so much about, now that the battle lines have seemingly been 
drawn on this matter, we are told it will pretty much be a partisan 
vote. I find it somewhat ironic that over the past several years that 
many of those who wanted to investigate seemingly everything that came 
down the pike, now have 

[[Page S18974]]
gotten to be sensitive about congressional overreaching and 
partisanship.
  Unfortunately, it always just seems to depend on whose ox is being 
gored. You look back over the congressional investigations and you will 
see that invariably there is some partisanship involved in it because 
the majority party investigates the President of the other party and 
the minority party cries ``politics'' and talks about how much money we 
are wasting and how much money we are spending. I remember those 
conversations back when some of these other investigations over the 
years were started. The pattern seems to be the same.

  So now we can all assume our natural and customary positions as 
Republicans and Democrats, or we can actually look to the merits of the 
case. I suggest that we do that. I think the American people would 
appreciate it. It would not be unprecedented.
  The vote in the Senate to form the Watergate Committee, for example, 
was a unanimous vote at a time when still most people thought that it 
was, in fact, a third-rate burglary. When it came time to subpoena 
President Nixon's White House tapes, the vote on the Watergate 
Committee was unanimous, including that of the distinguished Senator 
from Hawaii, Senator Inouye. When it came time to sue the President to 
enforce that subpoena, I signed the pleadings as counsel to the 
committee. All this was not because the proceedings were totally free 
of partisanship. It was because we believed the privilege was not being 
properly asserted by the President. I respectfully suggest that the 
same is true here.
  I still have hope that the President will reconsider his position--
not over the question of a handful of notes--over the general 
proposition of whether at this particular time in our history we want 
to see another President claim a privilege to keep information from the 
American people.
  We are not writing on a blank slate here, Mr. President. Our country 
has a history with regard to such matters and it has had an effect on 
us as a people. This day in time when a President who withholds 
information from the public has a higher duty and a higher burden than 
ever before. The people want the facts. They want the truth. The 
President, any President, should have a very good reason for denying 
it. The President in this case simply does not have one. I yield the 
floor.
  The PRESIDING OFFICER. Under the unanimous consent agreement the 
Senator from Ohio is to be recognized.
  The Chair, in my capacity as a Senator from the State of New York, 
asks unanimous consent that, thereafter, Senator Murkowski from Alaska 
be recognized.
  Without objection, it is so ordered.

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