[Congressional Record Volume 141, Number 205 (Wednesday, December 20, 1995)]
[Senate]
[Pages S18975-S18983]
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. MURKOWSKI. Mr. President, this is a difficult issue for all 
Members of this body relative to the business at hand and the necessity 
of proceeding with the subpoena. I suggest that probably not since the 
days of the Watergate constitutional confrontation has this body 
considered an action that is as serious as the one that we are 
considering here today.
  It is the feeling of this Senator from Alaska that this day did not 
have to come, but it is here. The subpoena was not something that was 
inevitable. But we are here today for one reason and only one reason, 
and that is because we have a situation where our President refuses to 
cooperate with this Senate investigation and turn over the notes that 
could be very crucial to the public's understanding of the Whitewater 
scandal.
  The President and the administration seem to be hiding behind the 
shield of attorney-client privilege. At the same time, one can see 
through the raising of the specter of executive privilege. You cannot 
have it both ways. It is one or the other.
  The White House claims that it will turn over these notes on one 
hand, and then lays down conditions, conditions that are so totally 
unreasonable that what the President is really saying is that he will 
not turn over the notes in the sense of full disclosure.
  It is interesting, because from the day these hearings began, in July 
of 1994, my colleague from New York, Senator D'Amato, and I made 
several appeals on this floor concerning various issues, the statute of 
limitations and others, relative to questions that had been raised to 
which were not forthcoming responsible answers. So, back in July of 
1994, the White House, at that time, professed the President's desire 
to cooperate, cooperate with the formation of the special committee of 
which I am a member. The President said that he, too, was interested in 
getting the facts--all the facts out on Whitewater.
  At nearly every turn of the committee's deliberations the White House 
has tried to make these deliberations more difficult, more prolonged, 
refuses to answer more questions, and seems to have a shorter memory. 
What this committee is charged with doing, under the able leadership of 
Senator D'Amato, is to hold the President to his promise to cooperate 
with this committee. One has to ask if the administration has an 
ulterior motive, or other reason, for not cooperating? At all times it 
seems what the President professes is not necessarily what the 
President ultimately means. I do not have to go into the issue of 
balancing the budget with OMB's figures or CBO figures--that's an 
argument for another time. But I think the American public is now aware 
that what the President professes is not necessarily what the President 
means.
  We see this pattern repeated again and again and again. That is part 
of the problem here today, Mr. President. The American public has seen 
this pattern over and over, and the concern now is that the President's 
tactics have almost conditioned the public for a norm. The public has 
come to expect this from the administration as a consequence because of 
this repeated inconsistency, and has become used to it. That is very 
dangerous. At times it seems that, because of the President's track 
record, the public's expectations and standards for the President are 
lower.
  I think we agree that we have an obligation to hold the President 
accountable. The President must be held to his promises. Today, we must 
hold the President accountable by preventing him and his administration 
from withholding information from the American public, information that 
the public is entitled to know. We have to put an end to the stalling 
and to the delay tactics that have become so familiar to the Special 
Whitewater Committee. Even the media is beginning to pick up on it. You 
can hardly find a newspaper article today where the term 
``stonewalling'' and ``the President'' do not appear in tandem.
  These delay tactics that this committee has endured, which I know 
many of my colleagues have elaborated at great length on today, can 
only lead to one conclusion: The administration has led a deliberate 
and systematic effort to cover up. And cover up what? What is there to 
hide? Why is the administration fighting us and being so reluctant to 
turn this information over?
  I want to bottom line the seriousness of the vote that we are going 
to be taking at some point in time. Chairman D'Amato outlined what our 
investigation is all about. The investigation of Madison Guaranty and 
Whitewater have led to felony convictions and resignations. Think about 
that. That is pretty serious, Mr. President. The investigation so far 
has led to felony convictions and resignations, and there are those 
that just pooh-pooh this matter and simply say, well, we have not 
really learned anything. We have some convictions. We have some 
resignations.
  The McDougals, the owners of Madison Guaranty, were involved in 
numerous improper loans and land deals which led to the loss of tens of 
millions of taxpayer dollars. Witnesses testified before the committee 
that the Whitewater Corp., which is half owned by the Clintons and half 
owned by the McDougals, had improperly ``kited'' funds.
  That is serious, Mr. President. That is very serious. I spent 25 
years in the banking business as the chief executive officer of a 
statewide organization. I know what cease and desist orders mean 
relative to mandates by the controller of currency, the Federal Deposit 
Insurance Corporation.
  What was going on in Madison Guaranty was clearly illegal. There is a 
story that has yet to be told relative to the obligations of the 
various agencies that examined that financial institution. I am 
convinced that those examiners were doing a conscientious job relative 
to the reporting of the true condition of that organization, and they 
were reporting up to their level. And for reasons that have yet to be 
made clear to the committee and made public, no action was taken by the 
administrators associated with the insurance of the depositors with 
Madison Guaranty.
  So, clearly, there were pressures brought to bear on the top 
regulators by political influences that surrounded Madison Guaranty not 
to take action relative to the illegal activities that were associated 
with Madison Guaranty, whether it be the kiting of the checks or the 
manner in which clearly Madison Guaranty, under the McDougals, was 
being operated almost for the benefit of a few selected individuals who 
were receiving favorable loans at favorable interest rates. The loans 
were rewritten to bring the due dates current. The interest was simply 
added to the principal to bring those loans current.
  These are all flagrant violations that suggest, if you will, not just 
inappropriate or improper handling, but an illegal activity of a very, 
very serious nature subject to formal charges by the banking 
authorities and the regulators. But we did not see that, Mr. President. 
That did not occur as the true condition of Madison Guaranty become 
known to the regulators.
  I think that there is a story yet to be told. I hope that we find 
those that are willing to come forth and explain to the committee why 
appropriate action was not taken when indeed Madison Guaranty was 
running amuck, running almost as a personal extension of the McDougals 
and some of their friends. 

[[Page S18976]]

  We have been attempting to get information in the committee. The 
committee has been hindered from obtaining information because of 
numerous delays, stonewalling tactics. One of the things that is very, 
very hard for this Senator to accept is the convenient loss of memory.
  Susan Thomases, the First Lady's friend and adviser, responded, ``I 
do not remember'' over 70 times to even the most basic questions asked 
by this committee. These were not everyday events; these were 
significant events from very, very bright people who were associated 
with a responsibility to perform. And to suggest that they cannot 
remember, over 70 times in testimony, significant events is pretty hard 
to accept by the committee.
  Maggie Williams, the First Lady's chief of staff, a very, very 
bright, articulate person, told the committee over 140 times that she 
did not recall. Once in a while, OK. I cannot recall every specific 
event that happened last year, but in regard to important matters, I 
can tell you what happened last year. And I can tell that certain 
events stand out in one's memory, Mr. President. For example, I have 
been deposed by attorneys relative to business activities of the 
organizations that I have run, and those proceedings, those types of 
proceedings, do stand out in your memory. It may be very convenient to 
say I do not recall, but to do it 140 times to the committee in 
response to some very, very basic questions about some dramatic events, 
events that some of the witnesses themselves documented, is simply 
pretty hard to accept.
  During the week of the committee's investigation we learned now of 
the possibility of more cover up in the White House, and we have 
discovered that files are missing.
  Mrs. Clinton's law firm represented Madison Guaranty against the 
State and Federal investigations that were occurring. Mrs. Clinton 
professed that she did ``very minimal work'' on the Madison Guaranty 
case. On Monday, the committee learned that the First Lady's statement 
may need to be questioned.
  The personal notes of the close friend and adviser to the First Lady, 
Susan Thomases, were disclosed in the committee and revealed the 
following:
  One, that Mrs. Clinton actually had numerous conferences, which have 
been documented, with the Madison Guaranty officials.
  Two, that Mrs. Clinton made several efforts to keep the failing 
thrift afloat. Obviously, that was her job as counsel representing the 
Rose law firm. There is nothing wrong with that. But the fact is, we 
are not able to get the documentation to just how far those efforts 
went.
  And lastly, that Mrs. Clinton was solely responsible for all the law 
firm's bills for the Madison case. The accuracy of that should be able 
to be ascertained relatively easily by documentation, but we do not 
have the documentation.
  Earlier this month, Webster Hubbell, former Assistant Attorney 
General and former Rose law firm partner, who is now serving 21 months 
in Federal prison, also testified that Mrs. Clinton did little work on 
the Madison Guaranty case. However, the committee was able to produce 
billing records showing that Mrs. Clinton billed the Madison account 
for more than $6,000.
  Again, I would remind my colleagues that the suggestion that this 
matter is not really very important, that nothing has been proven, 
Webster Hubbell would contend otherwise. He is serving 21 months in 
Federal prison relative to his role. And again, he was former Attorney 
General and former Rose law firm partner.

  What is all this concern about? Why should the committee or the 
Senate or especially the American people be concerned about Madison 
Guaranty and Whitewater? Because, Mr. President, when Madison Guaranty 
ultimately failed, the American taxpayer picked up the cost, which was 
somewhere between $47 million and $60 million. The scam that went on at 
Madison was underwritten by the U.S. taxpayers.
  We know that Mrs. Clinton had involvement to some extent through the 
Rose law firm in some of the activities of Madison. And I am not 
suggesting that those were inappropriate. Why can we not find out? Why 
do they not tell us? What are they hiding? As I said earlier, Mrs. 
Clinton billed over $6,000 to the Madison Guaranty account. According 
to the Rose law firm's accounting records, Mrs. Clinton did perhaps 
more work on Madison than anyone at her firm except one junior 
associate. Now everything that the committee learned may be just the 
tip of the iceberg because the Rose law firm claims that its billing 
files that recorded Madison activity from 1983 to 1986 are missing.
  Let me repeat that, Mr. President. The Rose law firm now claims that 
its billing files that recorded Madison activity from 1983 to 1986 are 
missing. Well, it sounds more like ``I don't remember'' 70 times or ``I 
don't recall'' 140 times. And here is a sophisticated law firm with a 
long, long tenure, a respected law firm. There are a number of lawyers 
in this body, and I think they are all familiar with the meticulous 
process of billing. We always joke about the lawyer: Start talking to 
the lawyer and the clock starts. If you have ever received a billing 
from a lawyer, you have some idea how meticulous they are. They do not 
forget very much. They are trained to do that. The young attorneys bill 
out so much an hour, and they are expected to bill out so much a day. I 
have a daughter who occasionally reminds me of that as a young lawyer. 
But nevertheless to suggest that these are now missing from 1983 to 
1986 is incredible.
  I am reminded here of a reference that was made in the New York Post 
today. And this may or may not be pertinent, but it is certainly 
suggestive. It says, ``A Rose law firm clerk said he was told to shred 
documents in February of 1994 shortly after a Whitewater special 
prosecutor was appointed.''
  As a consequence, Mr. President, the files contain information of 
just how involved perhaps the First Lady might be in the Madison 
Guaranty issue. The files could provide the committee with details of 
who contacted whom and what was discussed about Madison. It is rather 
curious to me that we do not have information from the RTC, Resolution 
Trust Corporation, which took over from the organization when it 
eventually failed. Upon such a takeover, there is inevitably a series 
of events that must occur. Madison was taken over by an organization, 
and then that organization failed and the RTC must have ultimately 
taken control over all the Madison records.
  Now, those records should contain billing statements that were sent 
from the Rose law firm to Madison Guaranty. They might not be as 
specific as the Rose law firm's own records that would document 
specific topics and the details of the legal representation, however, 
the RTC records might be able to shed some light on the amount that the 
firm billed, the amount of time spent on the case, and may reference 
certain specific subject matters. I suggest that this might be an 
avenue that the committee investigates. It would seem to me it would be 
appropriate to make a determination whether or not the RTC has those 
records from Madison Guaranty and, if not, then attempt to determine 
what happened to the records. I think this could shed some light on 
determining how much the Rose law firm was reimbursed for its 
representation of Madison Guaranty.
  Now, Susan Thomases' own notes appear to contradict the sworn 
testimony of Mrs. Clinton in an affidavit of 1994 in which she said 
that she had little or no involvement in Madison.
  Let us find out. Come on up with the evidence. Come up with the 
records. Yet, when we attempt to get the evidence, the Rose law firm 
says their records are missing from 1983 to 1986. Were those shredded? 
The Rose law firm, I think, owes the committee an explanation. 
Thomases' notes show that Mrs. Clinton had numerous conversations with 
Mr. McDougal, the Madison Guaranty's President, about a preferred stock 
plan and brokerage deals that the thrift was proposing to State 
regulators to keep Madison in business.
  The only way to find out the extent that Mrs. Clinton was involved is 
to review the law firm's records. But as I have said before, these 
files seem to have mysteriously vanished. Apparently the files were 
removed--perhaps by Webster Hubbell. We believe that the files may have 
been stored in his garage for a period of time. No one 

[[Page S18977]]
seems to have any accurate knowledge of where the files are now. So to 
suggest that there is nothing here that bears examination, that there 
is nothing here that should not be brought before the public, I think, 
is an injustice to the committee members and those who have worked so 
hard to bring the facts forward.
  I am personally, as a member of the committee, tired of the 
withholding tactics. I am tired of the stonewalling, tired of the 
excuses, ``I don't recall,'' ``I can't remember.'' I think we are at a 
crucial point now, a point in which this body can and should make the 
White House accountable. The committee's request for William Kennedy's 
notes is not unreasonable, Mr. President. The meeting that occurred 
between the President's private attorneys and the Government attorneys 
goes to the very heart of our investigation, an investigation to 
determine whether the White House misused official information. So I 
regret that the events have come to this extent today, to the vote that 
we are going to be taking at some time. However, it is the White House 
that forces the hand of this body to act. And I would again encourage 
the President to reconsider and come forthwith the information that has 
been asked by the committee and keep his promise to fully disclose 
information. I believe that the American public has a right to know. 
And it is certainly responsible for this committee to make such a 
request and initiate such action if that material is not forthcoming.
  Mr. President, I ask for only one other item to be included in the 
Record, and that is a recap of the fees from Madison Guaranty Savings & 
Loan. And it is January, 1985. It identifies specific billings. It does 
not have a total on it for services rendered, but that can be 
ascertained by anyone looking at it.
  I ask unanimous consent that that be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     RECAP OF FEES FROM MADISON GUARANTY SAVING & LOAN--FINAL RECAP     
1983: None                                                              
1984: None                                                              
1985: January--None                                                     
Feb./Mar./April/1985: None                                              
May 1985:                                                               
  Baledge...........................  Madison Guaranty.......     $82.50
  Massey............................      do.................     695.50
  S. Grimes.........................      do.................     260.00
  Clinton...........................      do.................     840.00
June 1985:                                                              
  Clinton...........................  Madison Guaranty.......      60.00
  Massey............................  Madison Guaranty/stock      186.00
                                       offering.                        
  Massey............................      do.................     819.00
July 1985:                                                              
  D. Thomas.........................  Madison Guaranty/Stock.      90.00
July 1985:                                                              
  Giroir............................      do.................      55.00
  Massey............................      do.................   1,391.00
  Law Clerks........................      do.................     210.00
  Clinton...........................      do.................     144.00
Aug/Sept/Oct. 1985: None                                                
Nov. 1985:                                                              
  Thrash............................  Madison Guaranty/IDC...     550.00
  Thrash............................      do.................     283.50
  Thrash............................      do.................     355.50
  Speed.............................      do.................      32.50
  Massey............................      do.................     552.50
Dec. 1985:                                                              
  Gary Garrett......................  Madison Guaranty/Stock       85.00
                                       Offering.                        
  Giroir............................      do.................     100.00
  Giroir............................      do.................     225.00
  Massey............................      do.................     555.00
  Massey............................      do.................     437.00
  Massey............................      do.................     234.00
  Clinton...........................      do.................      88.00
  Clinton...........................  Madison Guaranty.......     232.50
  Donovan...........................  Madison Guaranty/Stock       90.00
                                       Offering.                        
1986: January 1986:                                                     
  Donovan...........................  Madison Guaranty/Stock      468.75
                                       Offering.                        
  Dave Thomas.......................      do.................     262.50
  Massey............................      do.................     952.50
  Massey............................  Madison Guaranty/           165.00
                                       Limited Partnership.             
  S. Grimes.........................  Madison Guaranty/Stock       60.00
                                       Offering.                        
  Clinton...........................  Madison Guaranty/Stock    2,731.25
                                       Offering and IDC.                
  Clinton...........................  Madison Guaranty/            62.50
                                       Limited Partnership.             
  Clinton...........................  Madison Guaranty/Stock      802.50
                                       Offering.                        
March 1986:                                                             
  Donovan...........................  Madison Guaranty/IDC        825.00
                                       Stock offering.                  
  B. Arnold.........................  Madison Guaranty/Stock       80.00
                                       Offering.                        
April 1986:                                                             
  B.Arnold..........................  Madison Guaranty/Stock      236.00
                                       Offering.                        
  Donovan...........................      do.................     318.75
  Clinton...........................      do.................      12.50
  Clinton...........................      do.................     262.50
May 1986:                                                               
  Clinton...........................  Madison Guaranty.......      82.88
  Clinton...........................  Madison Guaranty/         1,050.00
                                       Babcock.                         
  Clinton...........................  Madison Guaranty/IDC...      70.00
  Clinton...........................  Madison Guaranty/           197.12
                                       General.                         
  Massey............................      do.................     112.50
  B.Arnold..........................  Madison Guaranty/IDC...      48.00
July 1986:                                                              
  Clinton...........................  Madison Guaranty/            56.00
                                       General.                         
  Clinton...........................  Madison Guaranty/           308.00
                                       Babcock.                         
October 1986: Clinton...............  Madison Guaranty/            84.00
                                       Babcock Loan.                    
1987: September 1987: Clinton.......  Madison Guaranty/           500.00
                                       General.                         
------------------------------------------------------------------------

  Mr. MURKOWSKI. I thank the Chair and I yield the floor.
  Mr. BOND addressed the Chair.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, I thank the Chair. I also commend our 
distinguished chairman of the Banking Committee, of the special 
Whitewater committee, for the good work that he has done.
  Mr. President, we are here today because the Senate special 
Whitewater committee has finally reached the point where we have to say 
enough is enough. In our efforts over the past year to take testimony, 
gather documents, collect phone records, review handwritten notes, we 
found that, rather than cooperation and responsiveness, we have been 
met with a pattern of delay, obstruction and obfuscation.
  After spending months trying to get access to various documents and 
phone records the old-fashioned way--we requested them--we discovered 
that a wide variety of records were being withheld. So we were forced 
to threaten to issue subpoenas.
  This started a trickle of information. Usually the information 
arrived either late the evening before or the morning of the hearing.
  But then we realized we were not receiving the documents to which the 
committee was entitled, so the chairman moved to actually issue 
subpoenas for anything and everything. In fact, after subpoenas were 
issued, surprise, surprise, documents and phone records began coming 
in, records that previously could not be found or could not be 
accessed.
  On top of the resistance to releasing documents and the long delays 
in releasing phone records, we have also had some amazing instances of 
not only lapse of memory, but in one instance a witness, April Breslaw, 
said she was not able to identify her own voice on tape. To anybody who 
has not done so, if you want to witness a truly amazing discussion, you 
should read the transcript where Chairman D'Amato asked Ms. Breslaw if 
she was the one that was actually on the tape. Ms. Breslaw said that 
the quality of the tape was not great, she was not sure that she was 
the one on the tape, and she did not know what to think.
  Mr. President, we have seen some truly remarkable things. Months ago 
we had a witness who claimed that he lied to his diary, another witness 
who cannot remember his own notes.
  But the strategy, I think, of obfuscation and obstruction has been 
taken to an art form in the testimony of Susan Thomases, the First 
Lady's close friend and associate. Over and over we heard Mrs. Thomases 
tell the committee that she ``did not recall,'' had ``no specific 
recollection,'' she had ``no personal knowledge'' of various events and 
phone calls surrounding the search of Vince Foster's office, the 
removal of documents from his office, the transfer of documents to a 
closet in the White House residence, and the discovery of the so-called 
suicide note.

  Yet, after much digging and digging and a dribble and drabble, and a 
bit here and a bit there, phone records, we found that in fact she was 
omnipresent on the telephone lines of the White House during the 
critical times in question and she was calling the people who were 
directly involved. But obviously a minor matter like that a potential 
major investigation of the suicide of a White House aide, she could not 
remember what actually went on.
  I believe today's Washington Post noted--or yesterday's Washington 
Post noted--that ``Thomases failed to recall virtually all the events 
Republicans question her about, and for the first time since this round 
of hearings began in August, Democrats dropped their defense of an 
administration witness. . .''
  Mr. President, that is what we have been facing throughout this 
investigation--fact by fact, record by record, note by note, and 
document by document, we have been dragging the truth out of the 
administration and its associates, little by little.
  If anybody had any question as to whether there may be something to 
hide, if you simply look at the pattern of delay, and refusal and 
dragging of 

[[Page S18978]]
feet, it should become obvious that there is a concerted effort by the 
White House not to give all the information they have. Everyone should 
understand this has been the underlying current of Whitewater since the 
beginning.
  The initial stories of this administration at nearly every step of 
the way have proven to be incomplete, inaccurate, or just plain untrue. 
It is only after pressure from Congress and the media that the truth, 
slowly, slowly, slowly trickles out. And we do not have it all yet.
  We come to the infamous Kennedy notes. This time they cannot claim 
that they do not remember or cannot recall. They cannot say the records 
cannot be found by the phone company. They cannot claim they are not 
sure if it is their voice on the tape. They cannot claim they cannot 
find the files or the billing records are missing.
  So what is left? They now claim that the notes made by a White House 
counsel, an official of the Government, of a meeting to discuss the 
Whitewater, Madison financial and legal activities, where there is 
significant allegations of wrongdoing which involve violations of 
Governmental laws and which involve the exposure of the Federal 
insurance trust funds, taxpayer trust funds, to private claims, they 
say meetings between a Government official, a White House counsel and a 
private attorney should not be released because they would violate the 
attorney-client privilege.

  The President has said he is standing on principle to defend his 
rights as a private citizen to have meetings with his lawyers. Well, 
there is no question the President has a right to have a private 
meeting with his private counsel. But if you read the Op-Ed article in 
today's Wall Street Journal by Joseph diGenova, he goes through 
instance after instance of congressional investigation where the 
various privileges were held by the other party when they were in power 
and in charge of the investigation not to be applicable to 
congressional investigations.
  Let us take a moment to talk about the principle which the President 
is defending. We have to remember that during 1993, the investigative 
wheels were in motion in three different Federal agencies, all pointing 
a finger at some activities that involved the top political elite, the 
political infrastructure of Arkansas.
  The RTC, the agency investigating the S&L failures, was looking into 
the activities of Madison Guaranty, specifically in the 
misappropriation of a $260,000 loan by now-Arkansas Governor Jim Guy 
Tucker, the embezzlement and conspiracy by bank owner Jim McDougal, and 
a loan illegally diverted to the Clinton 1984 reelection campaign. The 
Small Business Administration was working putting together a criminal 
case against David Hale and Capital Management Services.
  In this case we find Mr. Hale accusing the President of pressuring 
him to make an illegal loan to Jim McDougal, which eventually leads to 
Mr. Hale's conviction and the indictment of the current Governor of 
Arkansas. The Little Rock U.S. attorneys' office was in possession of 
an earlier criminal referral on Madison Guaranty in which massive check 
kiting was alleged.
  Mr. President, while all the investigative work was going on, 
political appointees of the President at the Department of the Treasury 
were briefed in late September 1993 about the contents of the RTC's 
criminal referrals I just briefly described.
  Unfortunately, instead of holding this information close, handling it 
as responsible governmental officials should handle the very sensitive, 
nonpublic information relating to a potential criminal investigation 
and/or action to be pursued by the Federal Government, the political 
appointees, Jean Hanson and Roger Altman, made the decision to tell the 
White House about the investigations. Then on September 29, 1993, Jean 
Hanson briefed then-White House counsel Bernie Nussbaum.

  One of the key facts which we discovered during our earlier hearings 
was that while Mrs. Hanson clearly had the details of the referrals and 
discussed them with the White House, she had been told by the RTC, 
specifically Mr. Roelle, that while the Clintons were not targets of 
the investigation, ``* * * the language of that referral could lead to 
the conclusion that if additional work were done [that is, further 
investigative work] the President and Mrs. Clinton might possibly be 
more than just witnesses.''
  That, Mr. President, is from the deposition of Jean Hanson, given to 
the inspector general of the RTC.
  And, of course, in October 1993, the possibility of further 
investigative work being done by the U.S. Attorney for the FBI was not 
a closed question. As we now know, the U.S. attorney in Little Rock, 
Paula Casey, is a Clinton appointee and while she declined to do any 
further investigative work on the first referral, had just received the 
second and had not at that time recused herself.
  Which brings us to the November 5, 1993 meeting between the Clintons' 
attorneys. Again, as we now know--and it has taken us a long time to 
get all of these details, even to find out about the November 5 
meeting--when several Federal agencies were investigating the 
activities of Jim McDougal, Jim Guy Tucker and David Hale, the 
investigators have indicated that if more investigation was done, it is 
possible that the Clintons would become more than just witnesses.
  Mr. President, we ought to add here, also from what we have now 
learned, it is or should be an open question as to whether there is any 
complicity of the lawyers who were representing the participants in the 
shady transactions which resulted in losses to Federal insurance funds. 
As a general proposition, an attorney friend of mine who has worked on 
a number of these cases says that where there is wrongdoing of a 
consistent pattern by a federally insured institution, usually the law 
firm knows about it or may possibly be involved in it. There is a real 
question as to what involvement a law firm representing an illegal 
scam-ridden operation has in the criminal activity.
  In this instance, obviously, Jim McDougal used Madison Guaranty, the 
savings and loan, as his piggy bank and did many things with it. At the 
time he was doing that, the Rose law firm was representing Madison 
Guaranty, and the partner in charge was Mrs. Clinton.
  My colleague from Alaska has raised the question about what happened 
to the files. Mr. President, that is a very important matter to 
consider, because I have worked in law firms, and you cannot walk in 
and take the files out of a law firm. You cannot go in and clean out 
the files. How did the original files from the Rose law firm wind up in 
the hands of political allies of the Clintons here in Washington? It 
would seem to me that when the RTC took over Madison Guaranty, they 
became the client and had the right to the files at the law firm 
representing the taken-over institution. Did they give their approval 
to removing those files? That is a question that bears further 
investigation.
  But let us go back to the specific instance of November 5. According 
to David Kendall's memo which he sent to the committee, he said that we 
can assume, just for the purposes of this discussion, that every bit of 
information possessed by the participants was discussed at the meeting. 
He said, ``Go ahead and assume it, as you make this decision.'' He did 
not say it conclusively. We don't have the notes. But that means for 
the purposes of this question of whether we ought to compel the 
production of the notes, we can assume that not only was the Clintons' 
private lawyer told about the details of the case by Mr. Nussbaum and 
Mr. Eggleston, he could also have been told that ``if further 
investigative work'' were done his client's status could possibly shift 
from witness to something else, to something more serious.
  This is a question that has bothered me throughout the investigation 
of what went on at Whitewater.
  Mr. President, I had a not-too-pleasant discussion with Mr. Nussbaum 
the first time he came before the committee because I did not feel he 
was representing the people of the United States as White House counsel 
should. I asked him if he had taken the time to advise and instruct the 
other people in the White House who had come in possession of this 
vital nonpublic information that could be used, if it were to get into 
the hands of those who were potential targets of the investigation, to 
prepare their defense, perhaps even to change or get rid of evidence to 
prepare themselves to prevent prosecution or active pursuit by the 
Government of its rights. 

[[Page S18979]]

  Mr. Nussbaum told me that it was totally, totally unrealistic. He 
said: These people--I don't have to tell them that you shouldn't misuse 
inside information or nonpublic information you're getting--these 
people knew their responsibilities, knew their roles. I didn't have to 
go around telling these people not to do that and, indeed, Senator, 
with all respect--I realize you feel strongly about this, too--with all 
respect, Senator, there is not a single shred of evidence that anybody 
misused this information in any way. Not a single shred of evidence 
that documents were destroyed, people tipped off.
  Mr. President, obviously, when he said there is not a shred of 
evidence, I pointed out to him that was precisely what we were 
concerned about. We were concerned about the reports of the former 
nonlawyer, nonlegal intern, runner or clerk in the Rose law firm who 
talked about shredding documents. That is why we are concerned about 
the broader picture.
  But let me return to the President's statement that he was 
withholding the notes of the meeting on principle. Is he saying he 
believes it is his right for Government attorneys, who by virtue of 
their position, come into possession of confidential information, in 
this case information about an investigation into the Clintons' 
business partner in Whitewater development, an investigation about Mrs. 
Clinton's client, the law firm, the Rose law firm, about his Arkansas 
political allies and about his own 1984 campaign, to have this 
information transferred to his own attorney when it may directly 
involve himself, his wife, their legal liabilities and the legal 
liabilities of their political allies?
  Is he saying, as a President he has the right to know of these 
investigations into his associates and political allies, as well as his 
own campaign. Is he saying he has the right to know that if further 
work was done, he might become more than just a witness?
  Does the President seriously want to defend the principles that he 
should not only receive tipoffs, but he should also have the right to 
get the information to his private attorneys in order to prepare his 
and his wife's defense if needed?
  What other individual in America could get this special treatment? 
Who else would dare claim that meetings in which tipoffs of 
confidential information about an investigation into a business 
partner, political ally, to his own campaign, to his wife's law 
practice should be protected from investigation? I hope that he was not 
serious if this is the principle he wishes to defend.
  I think there are principles the President should be standing up for. 
No. 1, breach of the public trust is as serious an offense as 
committing a crime. No. 2, in exchange for the powers and 
responsibilities given the Government, the people expect fairness, 
evenhanded justice, impartiality, and they hold the basic belief that 
those in power can be trusted to be good stewards of their power. No. 
3, They do not expect those in power to give themselves special 
treatment, tipoffs or the ability to hide documents.
  Congress must also believe that those in high positions of 
responsibility are telling us the truth. When we ask questions or make 
inquiries, we trust the administration will tell the truth, will be 
honest, and when we get an answer, it is a full and complete one.
  Unfortunately, throughout this Whitewater investigation, beginning 
with questions we asked in the Banking Committee in February of 1994, 
it appears that a guiding principle for some has been that the ends 
justify the means. The ends, as outlined in the memo from my good 
friend James Hamilton to the President, was you should not provide 
anything; make sure you do not give them too much information; keep 
your head down; do not let anything out.
  I am afraid that this tone is apparently set from the top; that 
somehow that the public's best interest is served if the private 
interests of the President and First Lady are served, whether that be 
their political interest, the interest of the Presidency or even their 
commercial activities prior to the time they became the President and 
First Lady.
  As I have said many times before, this ethical blurry, coupled with a 
set of standards that seem to imply if you are not indicted, you are 
fit to serve, has caused several administration officials to resign and 
continues to hound this administration still today.
  To my colleagues in the Senate, I urge that we move forward with the 
subpoena. We need to get the full details of what was given to the 
private attorneys by the Government attorneys and what I think may have 
been a gross violation of public trust, if not more.
  I commend the chairman for his dogged pursuit, his evenhanded manner 
in affording all sides an opportunity to be heard, and I urge my 
colleagues to support the committee on this request.
  I yield the floor.
  Mr. BAUCUS. Mr. President, earlier this year, I joined an almost 
unanimous Senate in voting to support a broad resolution creating a 
special committee to investigate the Whitewater matter. I believe this 
investigation must be both vigorous and fair.
  First and foremost, it is our responsibility to find the facts and 
the truth. That is what people want. But, as we look for the truth, we 
must do everything possible to be fair and to respect the rights of 
everyone involved.
  So I believe there are two fundamental questions that must be 
answered in deciding whether to seek this subpoena:
  First, is the subject matter of this subpoena necessary to find the 
truth in the Whitewater matter?
  And, second, is this subpoena being sought with respect for the 
fundamental rights of those involved? Or is it being sought in order to 
carry on a political fishing expedition?
  The material sought by the special committee are the notes of Mr. 
William Kennedy from a meeting of the President's personal and official 
lawyers at a private law office on November 5, 1993. It is important to 
note that Mr. Kennedy, although an Associate White House Counsel at the 
time this meeting took place, had represented President Clinton before 
he was elected to the White House.
  The special committee has determined that Mr. Kennedy's notes of this 
meeting are a necessary part of their investigation; they are necessary 
to help get at the truth. I respect that. I believe Mr. Kennedy's notes 
should be made available to the special committee and to Mr. Kenneth 
Starr, the Independent Counsel investigating Whitewater. And I am 
pleased that the President has consented to the release of these notes.
  That should be the end of the story. This issue should be resolved. 
Mr. Kennedy's notes should be released without anybody having to go to 
court. That seems to be enough to satisfy the Independent Counsel, Mr. 
Starr, a Republican. That is enough to satisfy the distinguished 
chairman of the committee, Senator D'Amato, also a Republican. But it 
does not seem to be enough to satisfy Speaker Gingrich and the 
Republicans in the House of Representatives.
  They appear to want more than Mr. Kennedy's notes. They also appear 
to want the President to surrender one of his fundamental rights, the 
right of attorney-client privilege. Whether a Republican or a Democrat 
occupies the White House, that President should enjoy the same rights 
as any other American. And that includes the right to communicate in 
confidence with his attorney, doctor, or minister.
  This is not, as some have said today, a question of hiding the facts. 
Instead, it is a question of protecting a fundamental right--the 
fundamental right to talk candidly with your lawyer, your doctor, or 
your minister without having your words used against you. I do not care 
if we are talking about the President of the United States or the most 
average of Americans, that is one of the things--one of the values, one 
of the liberties--that make this country special.
  To me, it is that simple. If the President is willing to authorize 
the release of Mr. Kennedy's notes--as he is--there is no reason to go 
to court. There is no reason to challenge the President's right to 
maintain the confidentiality of his communication with his legal 
counsel.
  For these reasons, I will oppose the resolution before us today.
  Mr. President, it is with great pride that I note an act of kindness 
and selflessness by Ashley Silvernell from Forsyth, MT. 

[[Page S18980]]

  Ashley was walking down the street a few days ago when she spotted a 
$100 bill in front of Eagle Hardware store. Now, $100 means a lot to 
anybody, but to someone in middle school it's a pot of gold. Without 
hesitation, however, Ashley turned the $100 in to the store manager, 
Ken Allison. Ashley asked for no reward.
  It turns out that just a few days earlier, a family from Wyoming was 
shopping in the store that day and accidentally dropped the money. They 
didn't have credit cards. The family later called Mr. Allison from 
Wyoming, but never dreamed that the money would be found. When Ashley 
turned the $100 bill in, as you can imagine the family was thrilled.
  Ashley's act should recall for this U.S. Senate what the holidays are 
all about. As we are knotted here in gridlock, 5 days before Christmas, 
we must remember that honesty and good judgment are qualities to strive 
for everyday of our lives. Ashley's good will is an inspiration to us 
all and must not go unnoticed.
  And on behalf of myself and the thousands of Montanans who certainly 
will be inspired by her story, I would like to thank Ashley Silvernell 
for making a difference.
  Thank you. And I yield the floor.
  Mr. ABRAHAM. Mr. President, I rise in support of Senate Resolution 
199. I would like to focus on this from a slightly different 
perspective from those that have been suggested so far. In particular, 
I would like this body to consider the following question: Has 
President Clinton, in withholding material Congress is seeking for an 
obviously legitimate purpose, acted consistently with the standard of 
conduct set by every President who has served since President Nixon?
  Regrettably, Mr. President, I conclude that he has not. Accordingly, 
I believe it is incumbent on the Senate to adopt the pending 
resolution.
  President Nixon's assertion of executive privilege precipitated a 
constitutional crisis that ultimately played a major role in forcing 
his resignation. Since that time, Presidents have been extremely 
cautious in using privilege as a basis for withholding materials from 
legitimate Congressional inquiries. They have been especially cautious 
when this withholding of information might suggest to a reasonable 
person that privilege might be being asserted to cloak Presidential or 
other high level wrongdoing.
  The reason for this caution is clear: relations between the branches 
and the people's confidence in their Government suffer greatly when the 
President gives the appearance of withholding information in order to 
protect himself or others close to him from public scrutiny of 
potential wrongdoing.
  This practice was codified in a directive from President Reagan 
issued on November 4, 1982. Addressed to all general counsels, the 
directive describes how President Reagan wanted the assertion of 
executive privilege handled.
  Mr. President, I ask unanimous consent that the text of the 
memorandum be printed in the Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. ABRAHAM. Mr. President, let me quote from the memorandum:

       The policy of this Administration is to comply with 
     Congressional requests for information to the fullest extent 
     consistent with the constitutional and statutory obligations 
     of the Executive Branch.
       While this Administration, like its predecessors, has an 
     obligation to protect the confidentiality of some 
     communications, executive privilege will be asserted only in 
     the most compelling circumstances, and only after careful 
     review demonstrates that assertion of the privilege is 
     necessary.
       Historically, good faith negotiations between Congress and 
     the Executive Branch have minimized the need for invoking 
     executive privilege, and this tradition of accommodation 
     should continue as the primary means of resolving conflicts 
     between the Branches.* * *

  To this end President Reagan set up prudential limitations regarding 
the assertion of privilege even where a claim might be legitimate:

       Congressional requests for information shall be complied 
     with as promptly and as fully as possible, unless it is 
     determined that compliance raises a substantial question of 
     executive privilege.
       A substantial question of executive privilege exists if 
     disclosure of the information requested might significantly 
     impair the national security (including the conduct of 
     foreign relations), the deliberative processes of the 
     Executive Branch or other aspects of the performance of the 
     Executive Branch's constitutional duties.
       Every effort shall be made to comply with the Congressional 
     request in a manner consistent with the legitimate needs of 
     the Executive Branch.
       The Department Head, the Attorney General and the Counsel 
     to the President may, in the exercise of their discretion in 
     the circumstances, determine that executive privilege shall 
     not be invoked and release the requested information.

  Similarly, those advising Presidents since President Nixon have 
universally recommended great caution before assertions of privilege 
are made. One particular aspect of this advice is well worth quoting:

       An additional limitation on the assertion of executive 
     privilege is that privilege should not be invoked to conceal 
     evidence of wrongdoing or criminality on the part of 
     executive officers.
       The documents must therefore be reviewed for any evidence 
     of misconduct which would render the assertion of privilege 
     inappropriate.
       It should always be remembered that even the most carefully 
     administered department or agency may have made a mistake or 
     failed to discover a wrongdoing committed inside or outside 
     the Government. Study, Congressional Inquiries Concerning the 
     Decisionmaking Process and Documents of the Executive Branch: 
     1953-1960.
       The greatest danger attending any assertion of Executive 
     Privilege has always arisen from the difficulty, perhaps 
     impossibility, of establishing with absolute certainty that 
     no mistake or wrongdoing will subsequently come to light 
     which lends credence to congressional assertions that the 
     privilege has been improperly invoked.''

  This passage comes from a 1984 opinion written by Robert B. Shanks, 
Deputy Assistant Attorney General for the Office of Legal Counsel.
  Mr. Shanks was responding to the Deputy Attorney General's request 
for an opinion regarding Congressional subpoenas of Department of 
Justice Investigate Files. His opinion can be found at 8 Op. OLC 252. 
It well summarizes, I think, the dangers that any assertion of 
privilege may present even where the assertion is undertaken for 
legitimate reasons, but where its bona fide is bound to be suspect.
  Now I recognize, Mr. President, that the principal label President 
Clinton is placing on this privilege claim is attorney-client--although 
he has not disavowed a claim of executive privilege.
  But even apart from the fact that it is unclear whether the President 
has a separate attorney-client privilege in communications with 
government lawyers apart from his executive privilege, it does not seem 
to me that the label should matter. In either case the need to protect 
the President's authority to assert privilege where he really needs to, 
and to prevent gratuitous undermining of the public's faith in its 
government present the same overwhelming arguments for caution.
  Now it is clear to me that no matter what the basis of the 
President's assertion of privilege here, it does not meet the standards 
that previous Presidents have followed in these matters.
  The meeting at issue was apparently about a matter so far from the 
core interests of the Presidency that it required the involvement of 
private lawyers to defend the President's interests. It has nothing to 
do with national security. And it is impossible to believe that 
furnishing these notes will in any way impair the President in the 
performance of his constitutional functions.
  Moreover, given that the President's associates have managed to force 
the appointment of an independent counsel by withholding and removing 
files relevant to the Department of Justice's investigation into 
Vincent Foster's death, it seems to me that the President should take 
his obligation of candor even more seriously than is ordinarily the 
case.
  Thus, even if President Clinton has a valid claim of privilege--a 
point on which I am profoundly skeptical--I believe he ought not assert 
it here.
  He has given no reasons weighty enough to justify its assertion.
  And indeed, what he has said about this matter shows a surprising 
lack of perspective regarding the circumstances in which such 
assertions should be made.
  President Clinton is quoted in the press as saying that he ``doesn't 
think he should be the first President in history'' not to protect 
communications arguably protected by the attorney-client privilege. I 
don't know if this statement was accurately reported, but if it 

[[Page S18981]]
was, frankly it is as peculiar as some of the other claims that the 
President has been making in the last few weeks.
  Without going back very far in history at all, we can all come up 
with examples where Presidents have waived possible attorney-client 
privilege claims in the face of congressional requests for information.
  Indeed, if Congress is really and legitimately interested in 
something, such waivers are the norm, not the exception.
  Let us look at the select committee's 1987 investigation of the Iran-
Contra matter. The hearings, reports, and depositions are replete with 
references to notes, interviews, and testimony from government lawyers 
obviously covering potentially privileged materials. These include 
notes of then White House Counsel Peter Wallison, testimony from 
Attorney General Meese and Assistant Attorney General for the Office of 
Legal Counsel Charles Cooper, and National Security Council counsel 
Paul Thompson.
  Similarly, when Congress became concerned about issues arising out of 
the United States relations with Iraq, President Bush provided numerous 
materials to various committees investigating these matters. And these 
materials could have been the subject of claims of attorney-client 
privilege at least as strong as the one President Clinton is making 
here.
  Indeed, President Bush even provided notes and other materials 
relating to meetings among lawyers including the White House counsel 
and the counsel to the National Security Council regarding how to 
respond to congressional document requests. President Bush also 
interposed no bar to these lawyers' testifying before Congress and 
responding to questions.
  Indeed, Mr. President, as recently as 2 days ago President Clinton's 
own White House counsel voluntarily provided to members of the 
Judiciary Committee an opinion of the Assistant Attorney General for 
the Office of Legal Counsel regarding his interpretation of an 
antinepotism statute as not limiting the President's appointment power.
  This opinion undoubtedly would be subject to as strong an attorney-
client privilege claim as one can imagine the President making. But the 
White House counsel provided it, knowing that it would waive any 
privilege claim, because he believed it was in the interest of the 
President for the Judiciary Committee to have it.
  I ask unanimous consent that the letter transmitting this opinion be 
printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                              The White House,

                                    Washington, December 18, 1995.
     Hon. Orrin Hatch,
     Hon. Joe Biden,
     U.S. Senate, Committee on the Judiciary, Washington, DC.
       Dear Chairman Hatch and Senator Biden: At my request, 
     Walter Dellinger has reexamined the question of the 
     application of the anti-nepotism statute, 28 U.S.C. Sec. 458 
     to the President's nomination of William Fletcher to the 
     Ninth Circuit Court of Appeals. I am forwarding to you Mr. 
     Dellinger's memorandum which concludes that the section does 
     not apply to the presidential appointment of federal judges.
       His analysis of the text and its history confirms that the 
     position of judge on a federal court is not an office or duty 
     ``in any court'' within the meaning of section 458; that it 
     was not considered to be so by the Congresses that enacted 
     either the original or the current version of the section; 
     and that it has never been treated as such by any subsequent 
     President or Senate. The evident purpose of this statute was 
     to prevent judges (and, as revised in 1911, person working 
     for judges) from appointing their relatives to such positions 
     as clerks, bailiffs, and the like. On the other hand, the 
     novel view that section 458 applies to the nomination by the 
     President of Article III judges would commit one to the 
     conclusion that a number of distinguished judges had served 
     their country illegally, including Augustus and Learned Hand.
       Mr. Dellinger has also concluded that the statute does not 
     apply to presidential appointment of judges because of the 
     well-established ``clear statement'' rule that statutes will 
     not be read to intrude on the President's responsibilities in 
     matters assigned to him by the Constitution, including the 
     appointments power, unless they expressly state that Congress 
     intends to limit the President's authority. The Supreme Court 
     has applied this principle often, even to statutes the text 
     of which would otherwise clearly appear to cover the 
     President.
       Any assumption that section 458 limits the President's 
     authority to appoint Article III judges--and that such a 
     limitation would not raise any serious constitutional 
     question--would establish a precedent that would profoundly 
     alter the constitutional separation of powers in ways that 
     sweep well beyond the statute at issue here. Any assumption 
     that general statutory language should be read to limit 
     the authority of the President of the United States to 
     carry out his constitutional responsibilities would 
     overturn important executive branch legal determinations 
     by a succession of Assistant Attorneys General including 
     William H. Rehnquist, Theodore B. Olsen, Charles J. Cooper 
     and William Barr and by Deputy Attorney General Lawrence 
     Silberman, in addition to clearly applicable Supreme Court 
     decisions.
       In light of its text, its statutory history, and the 
     constitutional principle embodied in the clear statement 
     rule, it is beyond doubt that any court would find section 
     458 to be inapplicable to the presidential appointment of 
     federal judges. I hope that the Senate will not base its 
     important decision regarding the nomination of Mr. Fletcher 
     on the view that section 458 applies to it.
       Many thanks for your consideration.
           Sincerely,
                                                       Jack Quinn,
                                         Counsel to the President.

  Mr. ABRAHAM. In short, there is nothing extraordinary or 
unprecedented in the Select Committee's interest in these notes and the 
committee's desire to get them is far from extraordinary or 
unprecedented in the history of Congressional-Presidential relations.
  Rather, what is extraordinary and inconsistent with the way 
Presidents since President Nixon have handled such questions is 
President Clinton's assertion of privilege.
  This is particularly striking given the circumstances surrounding 
these materials; circumstances suggesting to many reasonable observers, 
including the editorialists quoted on the floor today, that there is a 
issue of potential high level wrongdoing at issue here.
  Mr. President, I would like to make one final point. Some have said 
that if we vote to enforce the subpoena, all efforts to reach a 
negotiated settlement of this matter will cease.
  Mr. President, that would greatly surprise me. The courts have stated 
time and time again that both branches have an obligation to 
accommodate each other's interests in these matters. Thus, if either 
branch were to cease all efforts at accommodation, it would do great 
damage to its legal case. Moreover, it is in both branches' interest, 
and indeed it is both branches' constitutional duty, to try to resolve 
this matter without going to court.
  Therefore I do not think any Member of this body should view a vote 
to enforce this resolution as a vote to end our efforts at resolving 
this matter without going to court.
  Rather, even if we adopt this resolution and Senate Legal Counsel 
begins work on legal papers, I am sure the committee will at the same 
time continue its efforts to obtain these notes with the President's 
consent. And it is my hope that, resolution or no resolution, the 
President will provide them promptly.
  That is his duty, as it is our duty to defend the committee's ability 
to investigate potential wrongdoing.
  I yield the floor.

                               Exhibit 1


                                               The White House

                                     Washington, November 4, 1982.


     memorandum for the heads of executive departments and agencies

     Subject: Procedures Governing Responses to Congressional 
         Requests for Information
       The policy of this Administration is to comply with 
     Congressional requests for information to the fullest extent 
     consistent with the constitutional and statutory obligations 
     of the Executive Branch. While this Administration, like its 
     predecessors, has an obligation to protect the 
     confidentiality of some communications, executive privilege 
     will be asserted only in the most compelling circumstances, 
     and only after careful review demonstrates that assertion of 
     the privilege is necessary. Historically, good faith 
     negotiations between Congress and the Executive Branch have 
     minimized the need for invoking executive privilege, and this 
     tradition of accommodation should continue as the primary 
     means of resolving conflicts between the Branches. To ensure 
     that every reasonable accommodation is made to the needs of 
     Congress, executive privilege shall not be invoked without 
     specific Presidential authorization.
       The Supreme Court has held that the Executive Branch may 
     occasionally find it necessary and proper to preserve the 
     confidentiality of national security secrets, deliberative 
     communications that form a part of the decision-making 
     process, or other information important to the discharge of 
     the Executive Branch's constitutional responsibilities. 
     Legitimate and appropriate claims of 

[[Page S18982]]
     privilege should not thoughtlessly be waived. However, to ensure that 
     this Administration acts responsibly and consistently in the 
     exercise of its duties, with due regard for the 
     responsibilities and prerogatives of Congress, the following 
     procedures shall be followed whenever Congressional requests 
     for information raise concerns regarding the confidentiality 
     of the information sought:
       1. Congressional requests for information shall be complied 
     with as promptly and as fully as possible, unless it is 
     determined that compliance raises a substantial question of 
     executive privilege. A ``substantial question of executive 
     privilege'' exists if disclosure of the information requested 
     might significantly impair the national security (including 
     the conduct of foreign relations), the deliberative processes 
     of the Executive Branch or other aspects of the performance 
     of the Executive Branch's constitutional duties.
       2. If the head of an executive department or agency 
     (``Department Head'') believes, after consultation with 
     department counsel, that compliance with a Congressional 
     request for information raises a substantial question of 
     executive privilege, he shall promptly notify and consult 
     with the Attorney General through the Assistant Attorney 
     General for the Office of Legal Counsel, and shall also 
     promptly notify and consult with the Counsel to the 
     President. If the information requested of a department or 
     agency derives in whole or in part from information received 
     from another department or agency, the latter entity shall 
     also be consulted as to whether disclosure of the information 
     raises a substantial question of executive privilege.
       3. Every effort shall be made to comply with the 
     Congressional request in a manner consistent with the 
     legitimate needs of the Executive Branch. The Department 
     Head, the Attorney General and the Counsel to the President 
     may, in the exercise of their discretion in the 
     circumstances, determine that executive privilege shall not 
     be invoked and release the requested information.
       4. If the Department Head, the Attorney General or the 
     Counsel to the President believes, after consultation, that 
     the circumstances justify invocation of executive privilege, 
     the issue shall be presented to the President by the Counsel 
     to the President, who will advise the Department Head and the 
     Attorney General of the President's decision.
       5. Pending a final Presidential decision on the matter, the 
     Department Head shall request the Congressional body to hold 
     its request for the information in abeyance. The Department 
     Head shall expressly indicate that the purpose of this 
     request is to protect the privilege pending a Presidential 
     decision, and that the request itself does not constitute a 
     claim of privilege.
       6. If the President decides to invoke executive privilege, 
     the Department Head shall advise the requesting Congressional 
     body that the claim of executive privilege is being made with 
     the specific approval of the President.
       Any questions concerning these procedures or related 
     matters should be addressed to the Attorney General, through 
     the Assistant Attorney General for the Office of Legal 
     Counsel, and to the Counsel to the President.
                                                    Ronald Reagan.

  Mr. BYRD. Mr. President, on a day when some 260,000 federal employees 
remain idle because the Congress has not completed work on the annual 
appropriations bills--its most fundamental constitutional task--this 
body has before it a measure dealing with Whitewater that is unwise, 
and, quite frankly, wholly unnecessary. Instead of acting on the 
remaining appropriations bills, instead of completing our most basic 
task, we are being asked to divert our attention and adopt a resolution 
which is, I believe, nothing more than a vehicle to promote the 
political fortunes of some.
  The special committee, which the Senate created to investigate the 
Whitewater matter, has held more than a month of hearings. They have 
heard testimony from more than 150 witnesses. The White House, in 
conjunction with these hearings, has produced more than 15,000 pages of 
material, while the law firm of Williams and Connolly, which represents 
the President and Mrs. Clinton, have produced an additional 28,000 
pages. And through it all, the American taxpayer has been billed more 
than $27 million dollars.
  Yet, despite this, the American people are being led to believe that, 
unless the Senate adopts this resolution, which would require the 
Senate Legal Counsel to go into federal court in an attempt to enforce 
a Senate subpoena, some facet of the investigation will go uncovered. 
Mr. President, nothing could be further from the truth.
  The fact is that the White House has already stated its willingness 
to supply the material the Senate has asked for. The President has said 
he will make available the documents in question; notes taken by a 
former White House attorney during a November 1993 meeting. He has, as 
I think these actions show, acted in a reasonable, good faith manner. 
But at the same time the President has been willing to produce the 
subpoenaed material, he has also asked that he not lose the fundamental 
privilege of attorney-client confidentiality.
  Mr. President, every American has the right to talk to a lawyer fully 
and frankly without fear that the government will compel the disclosure 
of these personal communications. The President of the United States, 
be he Democrat or be he Republican, is no different. He is, like every 
other American citizen, entitled to the benefits of the attorney-client 
privilege.
  In view of the President's offer of cooperation, the Committee's 
attempt, 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 avoid risking the loss, in 
all forums, of his confidential relationship with his lawyer. This 
effort, at this time, and in light of the President's willingness to 
comply with the Senate's subpoena, simply smacks of political 
partisanship.
  Why else, if not simply to score political points, would the majority 
reject the President's offer? Why not accept the material, which the 
majority says it needs, and get on with the investigation? Why go to 
court, an action that will only prolong the investigation, if there is 
no intent to simply win headlines and seek political advantage?
  Mr. President, I hope my colleagues who may be inclined to support 
this resolution will reconsider their position. I hope they will 
reexamine the road down which we may be traveling, and vote against the 
subpoena resolution.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. D'AMATO. Mr. President, if I might seek recognition, first, for 
the purposes of propounding a unanimous-consent agreement.
  Mr. SPECTER. I will consent with the understanding that I do not lose 
my right to the floor after the unanimous-consent agreement is 
propounded.
  Mr. SARBANES. We imagine it will include the Senator within it.


                      Unanimous-Consent Agreement

  Mr. D'AMATO. Absolutely. First of all, I thank the ranking member, 
Senator Sarbanes, as well as Senator Pryor, for giving Senator Specter 
an opportunity to proceed. He is going to use about 10 minutes. 
Thereafter, I ask unanimous consent that Senator Pryor be recognized 
following Senator Specter.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, I support the pending resolution, but I 
express at the outset my concern about some of the legal arguments 
which have been raised that the attorney-client privilege does not 
apply to Congress, to congressional investigations. It is not necessary 
for me to reach that issue in my own conclusion or judgment here, that 
the attorney-client privilege does not apply, but I do express that 
concern.
  There has been an argument raised that the attorney-client privilege 
is different from the privilege against self-incrimination because the 
privilege against self-incrimination has a constitutional base. In my 
view, however, there is a constitutional nexus to the attorney-client 
privilege which arises from the constitutional right to counsel. Since 
the citations of authority limiting the attorney-client privilege in 
the context of congressional investigations--since those cases were 
handed down, there has been a considerable expansion in constitutional 
law on the right to counsel--Gideon versus Wainright, in 1963, 
asserting that anybody was entitled to counsel if they were haled into 
court on a felony charge, whereas, the practice in the prior period had 
been that the right to counsel did not apply, and the expansion of 
warnings and waivers under Miranda versus Arizona. So I think the 
breadth of the conclusion that the attorney-client privilege is not 
constitutional is certainly entitled to some skepticism at the present 
time.
  It is my view, however, that the attorney-client privilege does not 
apply here to preclude enforcement of this subpoena because the 
attorney-client privilege simply, on the facts, does not 

[[Page S18983]]
apply. Upjohn versus United States contains the basic proposition that 
the attorney-client privilege is the oldest of the privileges for 
confidential communications known to the law, with the citation to 
Wigmore. The Supreme Court in the Upjohn case says that the purpose of 
the attorney-client privilege is to encourage full and frank 
communications between attorneys and their clients and thereby promote 
the broader public interest in the observance of law and the 
administration of justice. The privilege recognizes that sound legal 
advice and advocacy serve public ends, but such advice or advocacy 
depends upon lawyers being fully informed by their clients.
  In the Westinghouse versus Republic of the Philippines case, the 
Third Circuit articulated this view: ``Full and frank communication is 
not an end in itself, but merely a means to achieve the ultimate 
purpose of privilege, promoting broader public interest in the 
observance of law and the administration of justice.''
  The Third Circuit, in the Westinghouse case, goes on to point out, 
``because the attorney-client privilege obstructs the truth-finding 
process, it is narrowly construed.''
  The essential ingredients for the attorney-client privilege were set 
forth in United States versus United Shoe Machinery Corp., a landmark 
decision by Judge Wyzanski, pointing out that one of the essentials for 
the privilege is that the communication has to have a connection with 
the functioning of the lawyer in the lawyer-client relationship. 
Professor Wigmore articulates the same basic requirement.
  As I take a look at the facts present here and a number of the 
individuals present, there was not the attorney-client relationship. 
There were present at the meeting in issue David Kendall, a partner at 
the Washington, DC, law firm of Williams & Connolly, recently retained 
as private counsel to the President and Mrs. Clinton. That status would 
certainly invoke the attorney-client privilege. Steven Engstrom, a 
partner of the Little Rock law firm that had provided private personal 
counseling in the past. That certainly would support the attorney-
client privilege. James Lyons, a lawyer in private practice in 
Colorado, who had provided advice to the President when he was 
Governor, and to Mrs. Clinton at the same time. But then, also present, 
were Bruce Lindsey, then director of White House personnel, who had 
testified that he had not provided advice to the President regarding 
Whitewater matters. Once parties are present who were not in an 
attorney relationship, the attorney-client privilege does not continue 
to exist in that context, where they are privy to the information. 
There was Mr. Kennedy, himself, associate counsel to the President--
William Kennedy, who said he was ``not at the meeting representing 
anyone.'' Then you had the presence of then counsel to the President, 
Mr. Bernard Nussbaum, and also associate counsel to the President, Mr. 
Neal Eggleston, who were present, not really functioning in a capacity 
as counsel to the President or Mrs. Clinton.
  So, as a legal matter, when those individuals are present, the 
information which is transmitted is not protected by the attorney-
client privilege. And then you have, further, the disclosure which was 
made by White House spokesman, Mark Fabiani, to the news media 
characterizing what happened at the November 5 meeting, and discussing 
the subject matter of the meeting, which would constitute as a legal 
matter, in my judgment, a waiver of the privilege.
  So that recognizing the importance of the attorney-client privilege, 
I would be reluctant to see this matter decided on the basis that 
Congress has such broad investigating powers that the attorney-client 
privilege would not be respected. As I say, we do not have to reach 
that issue. On the facts here, people were present who were not 
attorneys for the President or Mrs. Clinton. Therefore, what is said 
there is not protected by the attorney-client privilege. The later 
disclosure by the White House spokesman, I think, would also constitute 
a waiver. For these reasons, and on somewhat narrower grounds, it is my 
view that the resolution ought to be adopted and the subpoena ought to 
be enforced.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Arkansas is recognized.

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