[Congressional Record Volume 141, Number 205 (Wednesday, December 20, 1995)]
[Senate]
[Pages S18983-S18994]
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 consideration of the resolution.
  The PRESIDING OFFICER (Mr. Faircloth). The Senator from Arkansas.
  Mr. PRYOR. Mr. President, here we are, almost the night before 
Christmas, in the U.S. Senate, the House of Representatives, and we 
find ourselves still in session. We do not find ourselves, tonight, 
ironically, talking about what to do about the budget impasse. We do 
not find ourselves on the floor of the U.S. Senate this evening talking 
among each other and colleagues as we should about how to reopen the 
Government.
  No, Mr. President, we find ourselves this evening talking about a 
more arcane and mundane situation, something called Whitewater. 
Whitewater has become the fixation of one of our political parties. 
There is no secret about that.
  Today, the Republicans control the Congress. They set the agenda for 
what committees meet, when they meet, what issues come before those 
committees, what issues are brought before the floor of the U.S. 
Senate. I think it very timely, Mr. President, for us to examine the 
priorities of this session of Congress.
  I think it very interesting to note that tonight, a few hours before 
Christmas, when we had hoped to be back in our home States or wherever 
we might have been, when all of the employees of the Federal Government 
who are furloughed would prefer to be working and serving the public, 
as they do so well, we find ourselves once again engaged in what I call 
the Whitewater fixation.
  Here are the priorities that are established not by this Senator, not 
by this side of the aisle, but by our colleagues who might be well 
meaning on the other side of the aisle. I think it bears listening to 
for a few moments, Mr. President, to see that in this year we have had 
some 34 hearings relating to Whitewater. That would be the red bar 
going up the chart. Thirty-four hearings in 34 days of the U.S. Senate 
that have been designated for Whitewater--the Whitewater fixation.
  How many days have been set aside for Medicaid funding? Mr. 
President, six hearings, Mr. President--six compared to 34 for the 
Whitewater fixation.
  How many hearings have we held in the U.S. Senate in the calendar 
year 1995, in this session of Congress, that relate to education 
funding, Mr. President? Four hearings--four hearings compared to 34 
hearings of Whitewater.
  And how many hearings, Mr. President, have we had on the Medicare 
plan, as proposed by the majority party? How many days of hearings have 
we heard about Medicare? One day, one hearing. There it is, the small 
green bar on the bottom of the chart.
  That tells the story, Mr. President, I think of priorities for 1995 
and this session of Congress, where the priorities 

[[Page S18984]]
lie with the leadership of this Congress and what we really are faced 
with in determining what to do about this very critical vote this 
evening on what I call the Whitewater fixation.
  Mr. President, that is not the end of the story about the so-called 
Whitewater fixation and the Whitewater priority, because I think that 
sometimes we fail to recognize, as we go through 1 week, 1 month, one 
Congress at a time, continually appropriating money to chase the 
Whitewater fixation and to further study the Whitewater matter. I think 
from time to time it might be good to recapitulate how much it is 
actually costing the American taxpayers to engage the U.S. Senate, the 
resources of the special counsel, the resources of our Senate 
committees, in dealing with the Whitewater concern.
  For example, the first special counsel that was named to look into 
the Whitewater matter, who, I might add, was a Republican and in very, 
very good standing, Mr. Fiske, Mr. Fiske, as special counsel, spent 
$5.9 million--$5.9 million, Mr. President, in his investigation of the 
Whitewater matter. Mr. Fiske, evidently, did not find enough. He did 
not find a smoking gun. He did not nail any scalps to the wall, so Mr. 
Fiske was relieved of his responsibility. He was relieved. He was 
fired.
  Then came on to the scene Mr. Kenneth Starr, who has spent, from 
August 5, 1994 to March 31 of 1995, $8.7 million in the investigation 
of this illusory situation known as Whitewater. Mr. Starr could not 
finish his work, Mr. President. He had to come before the Congress and 
he had to have more money as a special counsel. So he comes back to the 
Congress this April. From April to November of 1995, independent 
counsel Kenneth Starr spent another $8 million.
  So we are adding up the figures. No, we could not quite spend enough 
money to satisfy Mr. Starr. In two appropriations, we could not spend 
enough to satisfy Mr. Fiske. He got no indictments of any consequence. 
He did not nail any scalps to the wall.
  So what happens next? We hire, by the RTC, the Pillsbury law firm, 
basically a firm with very strong Republican connections. I might add, 
a very splendid law firm, according to all reports. The U.S. taxpayer 
writes a check for $3.6 million to the Pillsbury law firm in 
California, to come forward with a report that basically says this: The 
Clintons are clean, the RTC should not pursue any criminal action 
whatever against the Clintons, nor this administration.
  Mr. President, that is still not enough: $3.6 million, $5.9 million, 
$8.7 million, $8 million. So now we have to go back and see what our 
own committee spent: in 1994, $400,000; in 1995, $950,000--a total, Mr. 
President, of $27.6 million that we have spent that we can account in 
this illusory situation, this illusory item known as Whitewater.
  This is the Whitewater fixation. This is the Whitewater fixation, Mr. 
President, that I think really is the Whitewater witch hunt. It is the 
witch hunt of the 1990's. It has become a waste of the taxpayers' 
dollars.
  What we are doing today is simply, in my opinion, showing where the 
priorities of this session of Congress are: with 34 hearings dedicated 
to Whitewater, 6 hearings dedicated to Medicaid, four hearings 
dedicated to education, and 1 hearing dedicated to Medicare. That is 
the priorities of this particular Congress thus far, in 1995.

  We have had brilliant arguments this afternoon and, I think, some 
brilliant arguments in the Banking Committee, perhaps, on each side of 
the aisle, relative to the question of the privilege created between 
attorney and client. I am not going to argue this. I am not a 
constitutional lawyer. I am not one who specialized in this particular 
area of the law. But I would just say this. I think it is very, very 
necessary for the American public at this time to have the knowledge 
that this administration in no way is trying to keep the U.S. Senate, 
the Banking Committee charged with this particular concern, keeping the 
notes of November 5, taken by Bill Kennedy, away from this committee.
  The White House has repeatedly said: We want you to have these notes. 
We think you should have these notes. We will give you these notes, 
taken by Mr. Kennedy and/or Mr. Lindsey. I forget which. But, what we 
want to make sure is that we are not waiving the very important, 
crucial matter of the attorney-client privilege.
  If we can, basically, in a political arena, invade or take away this 
privilege in any form, shape or fashion, if we erode that particular 
privilege, if we come before the U.S. Senate and say that privilege 
does not exist, then what is the next step? Are we going to come to the 
U.S. Senate and say we do not think we need to have a doctor-patient 
privilege? We want to do something about eroding that? So we start 
pecking away at that.
  I do not think that should be the business of the Senate at this 
particular time, to start eroding and emasculating the particular right 
that we revere in the common law and have for so many years, and that 
is the right of privilege created between lawyer and client.
  The White House wants to know how far this action extends. Should 
they make these notes available, they are seeking clarification. That 
is basically what this is about and I am very, very concerned that some 
people are making a very, very overrated political issue about the 
Whitewater matter.
  The Senate has spent a total of $1.35 million in 1994 and 1995 on the 
Whitewater matter. I would like to ask this question. What is the 
charge? What is the accusation against the White House? What is the 
accusation against any of the people who have been brought before the 
committee in the last 12 months, before the Senate committee? What are 
they being charged with?
  I would like to also know if anyone is taking cognizance of the fact 
that, even though some may be enjoying this event and may be making a 
little political hay out of it from time to time, I wonder if anyone 
has taken cognizance of how much the legal fees and the expenses of 
these witnesses are, some of whom certainly cannot afford the very, 
very high cost of counsel.

  The $27 million that the taxpayers have spent on the Whitewater 
investigation is almost three times what it would have been to have 
closed down Madison Savings & Loan institution in Little Rock, AR. The 
White House has provided, I think, according to the information that we 
have, over 15,000 pages of documents to the Senate committee. The 
President's personal attorney has produced more than 28,000 documents 
for the Senate committee. The Senate committee has deposed some 152 
individuals. The Senate committee has heard testimony from 78 people 
during the hearing, in the hearing examination process.
  All of this activity has been done with the total cooperation of the 
White House. And still there is no smoking gun. The so-called smoking 
gun that some say would be found in the notes taken by Mr. Kennedy and/
or Mr. Lindsey, those particular notes, in my opinion, even though I 
have not been privy to seeing them, probably, in all likelihood, 
contain no more of a smoking gun than has been found in the past 
several months during this investigation and during the tenure of two 
special counsels, Mr. Fiske and now Mr. Starr.
  I think we are going to have to face, Mr. President--I do not know 
when this comes up, perhaps in February--we are going to be faced with 
a decision. OK, we spent some $27 million on this, and I am not sure 
that includes the cost of all of the army of FBI, of the RTC, of the 
FDIC, all of the Federal employees, all of the Federal negotiators, all 
of the resources of the Federal Government, all the copying, the 
printing, the committee reports and all this--I am not certain that 
this cost even covers that particular amount. But we are going to be 
faced in the Senate, in February, I believe, if I am correct, with 
another question. Are we going to appropriate another $5, $6, $8 
million for the committee to continue down this same path of dragging 
these people before the committee, of interrogating them, of asking 
them to pay for their own lawyers' fees and basically bringing them in 
and putting them in the lockbox, so to speak, as they wait their turn 
to testify before the committee? Is this the best that we can do in all 
of these months and all of these years of investigating this thing 
called Whitewater? During this period of the Whitewater witch-hunt? 
During this period of Whitewater fixation?
  I think we are better than that. I think this Senate is better than 
that. 

[[Page S18985]]


  Mr. D'AMATO. Mr. President, could I ask just for a moment, so we 
might be able to hotline a resolution of this matter and I will yield 
the floor right back to my colleague?
  Mr. PRYOR. I will be glad to yield.


                      Unanimous-Consent Agreement

  Mr. D'AMATO. Mr. President, I ask unanimous consent, after having 
consulted with my friend and colleague, Senator Sarbanes, that the time 
between now and 7:15 be equally divided, excluding the Senator's time. 
After the Senator concludes his remarks, the time after the Senator 
concludes his remarks be equally divided in the usual form for debate 
on Senator Sarbanes' substitute amendment; that no other amendments or 
motions to recommit be in order, that it be in order for the amendment 
to amend both the preamble and resolving clause, and that at 7:15 the 
Senate vote on the Sarbanes amendment and upon the disposition of the 
amendment the Senate vote on passage of Senate Resolution 199, as 
amended, if amended, and that the preceding all occur without any 
intervening action or debate.


             Amendments--Nos. 3101, 3102, and 3103--En Bloc

  Mr. D'AMATO. Mr. President, also, I will send three amendments to the 
desk which have been cleared by the other side, my friend in the 
minority. I ask they be considered en bloc, agreed to en bloc, and I 
will move to reconsider.
  Mr. SARBANES. Are these the amendments directed toward a possible 
deficiency in the issuing of the subpoenas?
  Mr. D'AMATO. That is correct. They are the technical amendments that 
deal with the issuance of the subpoena.
  The PRESIDING OFFICER. Is there objection to the request as regards 
the amendments? If not, it is so ordered.
  The amendments--Nos. 3101, 3102 and 3103--were considered and agreed 
to en bloc, as follows:


                           AMENDMENT NO. 3101

(Purpose: To amend the resolution to reflect the serving of the second 
                               subpoena)

       The first section of the resolution is amended by striking 
     ``subpoena and order'' and inserting ``subpoenas and 
     orders''.
                                                                    ____



                           AMENDMENT NO. 3102

(Purpose: To amend the resolution to reflect the serving of the second 
                               subpoena)

       After the sixth Whereas clause in the preamble insert the 
     following:
       ``Whereas on December 15, 1995, the Special Committee 
     authorized the issuance of a second subpoena duces tecum to 
     William H. Kennedy, III, directing him to produce the 
     identical documents to the Special Committee by 12:00 p.m. on 
     December 18, 1995;
       ``Whereas on December 18, 1995, counsel for Mr. Kennedy 
     notified the Special Committee that, based upon the 
     instructions of the White House Counsel's Office and personal 
     counsel for President and Mrs. Clinton, Mr. Kennedy would not 
     comply with the second subpoena;
       ``Whereas, on December 18, 1995, the chairman of the 
     Special Committee announced that he was overruling the legal 
     objections to the second subpoena for the same reasons as for 
     the first subpoena, and ordered and directed that Mr. Kennedy 
     comply with the second subpoena by 3:00 p.m. on December 18, 
     1995;
       ``Whereas Mr. Kennedy has refused to comply with the 
     Special Committee's second subpoena as ordered and directed 
     by the chairman''.
                                                                    ____



                           amendment no. 3103

(Purpose: To amend the resolution to reflect the serving of the second 
                               subpoena)

       Amend the title so as to read: ``Resolution directing the 
     Senate Legal Counsel to bring a civil action to enforce 
     subpoenas and orders of the Special Committee to Investigate 
     Whitewater Development Corporation and Related Matters to 
     William H. Kennedy, III.''

  Mr. D'AMATO. Mr. President, I move to reconsider the vote.
  Mr. SARBANES. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. Is there any objection to the request for a 
vote on the Sarbanes amendment at 7:15 and a vote on the resolution 
after the 7:15 vote?
  Mr. SARBANES. The consent request was broader than that. I do not 
think there is any objection to the unanimous-consent request which was 
read by the chairman.
  The PRESIDING OFFICER. Is their objection to the request of the 
Senator from New York?
  If not, it is so ordered.
  Mr. D'AMATO. I thank my friend and colleague for extending us this 
time.
  The PRESIDING OFFICER. The Senator from Arkansas is recognized.
  Mr. PRYOR. Mr. President, I thank the Chair.
  Mr. President, I am going to conclude once again by saying that 
personally I think holding 34 hearings on Whitewater this year is 
enough. I think spending $27.6 million is enough. I think that 
expending these amounts of resources that we have expended, for the FBI 
and all of the other investigation teams, whatever, looking into 
Whitewater that have been utilized by the Federal Government I think 
frankly is more than enough.
  I hope--and I urge my colleagues on each side of the aisle--if there 
is something wrong that someone has done, let us name the cause, let us 
bring them to justice, and let us do what is necessary. But, Mr. 
President, to keep this issue out, to keep it dangling as it is today, 
to keep it as an issue that I fear is becoming politicized to a very 
great extent, and to not recognize the simple unfairness that we have 
created in not bringing charges when we might or might not have charges 
to bring but to just to keep that issue out there over and over and 
over and day after day, month after month, millions after millions of 
dollars, I think is unfair. I think this institution is better than 
that.
  I hope that we will reach down and find in our souls somewhere a way 
to finally conclude the Whitewater witch hunt and our fixation on the 
Whitewater matter.
  Mr. President, I thank the Chair. I yield the floor.
  Mr. D'AMATO addressed the Chair.
  The PRESIDING OFFICER. Under the previous order, the time from now 
until 7:15 is equally divided.
  Mr. D'AMATO. Mr. President, I ask unanimous consent that the three 
amendments just adopted en bloc be in order at this time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Who yields time?
  Mr. SARBANES. Have the three amendments been agreed to?
  The PRESIDING OFFICER. Yes.


                           Amendment No. 3104

  (Purpose: To direct the Special Committee to exhaust all available 
 avenues of negotiation, cooperation, or other joint activity in order 
to obtain the notes of former White House Associate Counsel William H. 
                             Kennedy, III.)

  Mr. SARBANES. Mr. President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Maryland (Mr. Sarbanes) proposes an 
     amendment numbered 3104.

  Mr. SARBANES. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       Strike all after the resolving clause and insert the 
     following: ``That the Special Committee should, in response 
     to the offer of the White House, exhaust all available 
     avenues of negotiation, cooperation, or other joint activity 
     in order to obtain the notes of former White House Associate 
     Counsel William H. Kennedy, III, taken at the meeting of 
     November 5, 1993. The Special Committee shall make every 
     possible effort to work cooperatively with the White House 
     and other parties to secure the commitment of the Independent 
     Counsel and the House of Representatives not to argue in any 
     forum that the production of the Kennedy notes to the Special 
     Committee constitutes a waiver of attorney-client 
     privilege.''.
       The preamble is amended to read as follows:
       ``Whereas the White House has offered to provide the 
     Special Committee to Investigate Whitewater Development 
     Corporation and Related Matters (`the Special Committee') the 
     notes taken by former Associate White House Counsel William 
     H. Kennedy, III, while attending a November 5, 1993 meeting 
     at the law offices of Williams and Connolly, provided there 
     is not a waiver of the attorney-client privilege;
       ``Whereas the White House has made a well-founded 
     assertion, supported by respected legal authorities, that the 
     November 5, 1993 meeting is protected by the attorney-client 
     privilege;
       ``Whereas the attorney-client privilege is a fundamental 
     tenet of our legal system which the Congress has historically 
     respected;
       ``Whereas whenever the Congress and the President fail to 
     resolve a dispute between them and instead submit their 
     disagreement to the courts for resolution, an enormous power 
     is vested in the judicial branch to write rules that will 
     govern the relationship between the elected branches;
       ``Whereas an adverse precedent could be established for the 
     Congress that would make it more difficult for all 
     congressional committees to conduct important oversight and 
     other investigatory functions;
     
[[Page S18986]]

       ``Whereas when a dispute occurs between the Congress and 
     the President, it is the obligation of each to make a 
     principled effort to acknowledge, and if possible to meet, 
     the legitimate needs of the other branch;
       ``Whereas the White House has made such an effort through 
     forthcoming offers to the Special Committee to resolve this 
     dispute; and
       ``Whereas the Special Committee will obtain the requested 
     notes much more promptly through a negotiated resolution of 
     this dispute than a court suit:''.

  Mr. SARBANES. Mr. President, I note that the preamble is also 
amended. But under the unanimous consent request, it is in order to 
amend both the preamble and the resolve clause. Is that correct?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. SARBANES. And no other amendments or motions to recommit are in 
order.
  The PRESIDING OFFICER. That is correct.
  Mr. SARBANES. The vote will occur at 7:15 and the time between now 
and then to be equally divided.
  The PRESIDING OFFICER. That is correct.
  Mr. SARBANES. How much time is then available to each side?
  The PRESIDING OFFICER. Approximately 27 minutes to each side.
  Mr. SARBANES. I thank the Chair.
  Mr. President, I yield myself 8 minutes and ask that the Chair notify 
me upon the expiration of the 8 minutes.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Maryland.
  Mr. SARBANES. I thank the Chair.
  Mr. President, this amendment, very simply put, takes the position 
that rather than going to court at this point, the special committee 
should exhaust all available avenues of negotiation and cooperation, or 
other joint activity, in order to obtain the notes and to work 
cooperatively with the White House and other parties to secure the 
commitment of the independent counsel and the House of Representatives 
not to argue that the furnishing of the notes, the production of the 
notes, constitutes the waiver of attorney-client privilege.
  We have been lead to understand that the independent counsel is 
amenable to such an arrangement in his discussions with the White 
House, although that has not been confirmed with us. But that is my 
understanding. This committee has agreed to this proposition.
  As the chairman indicated, two of the conditions the White House put 
forward when it offered the notes is that we will make the notes 
available, but we want to guard against the total waiver of the 
attorney-client privileges. One of those conditions was that the 
committee would not take the position in any forum that the production 
of the notes constituted a general waiver of the attorney-client 
privilege. In effect, that was recognized by the committee as a 
reasonable proposition and agreed to.
  The question now is, if the House committees would agree to the same 
proposition, the notes are forthcoming, if you eliminate then the risk 
of the waiver of the attorney-client privilege? I have heard discussion 
on the floor today--I did not challenge it on every occasion--that 
there is no reasonable claim here to a lawyer-client privilege. That is 
not what the experts tell us. Professor Hazard, who is one of the 
leading men in the country on this, has been rather clear in thinking 
there is an attorney-client privilege.

  In addition, once you waive it, you then have the risk of waiving 
your confidential relationship with your lawyer with respect to all 
meetings--not just with respect to this meeting. In any event, I think 
it serves our purposes to try to work this matter out.
  As I understand it, the discussions took place in the House today 
with the chairmen of the relevant House committees, and it seems to me 
that those discussions ought to continue and that we ought to get a 
posture hopefully on the part of the House committees comparable to the 
position this committee has taken and comparable to what the 
independent counsel has taken.
  It behooves us to try to avoid a confrontation, and it serves the 
Senate's purposes not to go to court if the matter can be resolved in a 
way that has been suggested. What is before us is a process whereby we 
can obtain the notes and yet not have any trespass or intrusion into 
the attorney-client privilege.
  This is a very important issue. One of my colleagues said earlier 
there is no case about the Congress dealing with the attorney-client 
privilege. The Congress has not trespassed the attorney-client 
privilege. One of my colleagues cited a quote of the President who said 
he would provide any information available. That was a year and a half 
ago, I guess. My reaction to that is obviously when he said it, he 
never envisioned that we would face the prospect of an unreasonable 
intrusion into the attorney-client privilege. I never thought that 
would happen, and when confronted with it here, the question is, how 
can we work through it? We can get these notes, not waive the attorney-
client privilege, and proceed with our inquiry. Of course, that would 
make the notes available immediately. That is the path that I think the 
Senate should follow.
  So I think it would serve the Senate well to make a further effort at 
working with the White House and the other parties to get the kind of 
understanding from all of the relevant investigatory bodies--and we are 
now talking about the House committees--in view of the decision of the 
independent counsel; that furnishing of the notes is not a general 
waiver of the privilege. We recognize that is reasonable. The 
independent counsel apparently recognizes that it is reasonable. If we 
can just close the loop with respect to the House committees, this 
matter can be settled. The notes will be furnished.
  There is a letter from the White House counsel saying, ``We have 
succeeded in reaching an understanding with the independent counsel 
that he will not argue that turning over the Kennedy notes waive the 
attorney-client privilege claim by the President.''
  With this agreement in hand, the only thing standing in the way of 
giving these notes to your committee is the unwillingness of Republican 
House chairmen similarly to agree.
  I understand they entered into discussion this afternoon with the 
House chairmen in respect to this very issue. Of course, the House 
chairmen, as I see it, have nothing to lose by the agreement. The notes 
become available. The agreement does not preclude them from any action 
that is currently available to them. It would not eliminate any course 
of conduct that they wished to follow that is currently available to 
them.
  The White House has indicated that as soon as they secured such an 
agreement from the House, they would provide the notes to the 
committee. So it seems to me that we ought not to provoke a 
constitutional confrontation. We ought not go to the courts in order to 
resolve this issue. I suggest to my colleagues, although many have 
asserted that there is a weak attorney-client privilege, I think just 
the contrary. In any event, the court may well decide that there is a 
strong attorney-client privilege which, of course, would have an impact 
on the investigatory authority of the Congress. It would be a prudent 
course of action to resolve the matter without going to the courts. 
There is every indication that that may well be possible.
  That is the situation in which we now find ourselves. This committee 
has recognized it as reasonable. The independent counsel has recognized 
it as reasonable. And if we can get the House committees to follow the 
same path, the notes can be furnished, there is no trespass on 
attorney-client, the committee can continue its work and continue to do 
it now. If we go to court, we have a long time ahead of us.
  The PRESIDING OFFICER. The Senator's time has expired.
  Who yields time?
  Mr. D'AMATO. Mr. President, first, let me say that I am forced to 
oppose the amendment for a number of reasons. I certainly do not 
question the sincerity of my colleague, Senator Sarbanes, in an attempt 
to bring about a successful mediation, successful in that it would 
result in the notes being turned over. I absolutely had no doubt from 
the beginning he has pursued this and worked to achieve this end. I am 
forced to oppose this, though, because there are a number of problems 
that I could see taking place.
  No. 1. I believe that this amendment could result, if passed--if 
adopted, this approach could result in prolonging what has really been 
a very long, now unnecessary, delay. This issue of these records and 
other records really goes 

[[Page S18987]]
back to August 25 and reaches a high point, begins to reach a high 
point in November, starting November 2 and culminates in December when 
we actually issue subpoenas.

  One actually has to understand that we did, in fairness again to the 
committee, issue these subpoenas on a bipartisan basis. We attempted to 
avoid it, attempted to mediate this before we finally came to the 
conclusion that we had to issue the subpoenas. And it was only then, 
when the White House raised the issue of privilege, the attorney-client 
privilege, that we kind of parted ways.
  When I say we parted ways, there was a recognition by the majority 
that this privilege, on our part we felt, did not apply, and there was 
a concern on the part of the minority that the White House was within 
its realm. But, notwithstanding the differences of opinion, I must say 
that my colleagues on the Democratic side urged an attempt to work this 
out. The fact is, though, we have been working toward this, I think, 
for several weeks very intensively. When I say ``we,'' I am talking 
about counsel--majority counsel, minority counsel--working to attempt 
to resolve this. We had offered basically to say we will not intrude 
into Mr. Kendall, we will not ask or seek a waiver. We say that this 
sets no precedent, so therefore you will not be bound in other areas. 
We will agree to those things. And that is basically now the position 
that the White House counsel finally came around to. But understand, it 
only came around to that after we indicated we would go forward and 
push this issue on the subpoenas. Very, very grudgingly did they come 
to this position, and they came to this position very late in the game. 
Notwithstanding that, we indicated that we would accept.
  Now, the problem we have is when we get into this language and we say 
that this committee will exhaust all available avenues of negotiation, 
cooperation, or other joint activity with the White House, the 
committee would have to attend more meetings, have endless 
negotiations--it could possibly take us, we do not know how long--
ignores what we have done, good faith work and negotiation starting in 
August and culminating finally when we have said basically enough is 
enough. If we cannot resolve the matter--reasonable people disagree; 
you contend it is privileged material; we do not believe that to be the 
case--we are going forward. And that is how we come here. If we were to 
adopt the amendment that is now being considered, we would put off the 
time when the committee could enforce the subpoena for Lord knows how 
long.
  I believe that my colleague really wants good faith negotiations and 
wants those notes. I do not know when the House may or may not agree to 
this. We have been told that the independent counsel has agreed. I have 
no doubt that, if that is the representation that has come from the 
White House, that is the case. But this amendment could literally 
require the committee to negotiate on behalf of the House, and this 
would be unprecedented and would require the committee to delay even 
more.

  Now, let me go to the merits of this. This amendment, if we read 
lines 1 through 19, says, ``Where the White House has made a well-
founded assertion, supported by respected legal authorities, that the 
November 5, 1993, meeting is protected by the attorney-client 
privilege.''
  Let me say, No. 1, no President has ever raised the attorney-client 
privilege. He just has not done it. It is unprecedented. No. 2, we 
would have to be conceding that this is well-founded. And 
notwithstanding that there may be a legal scholar or some who would 
give testimony to this who might believe this to be the case, I have to 
tell you that I do not believe that this is a well-founded assertion, 
as Senator Thompson, I believe, so scholarly and so powerfully argued; 
that the attorney-client privilege certainly did not apply to this 
meeting even given the limited circumstances that we understand as to 
how this meeting came about, even conceding--and I think if we were to 
go further, we would find out there would be ample testimony and proof 
that there is no way that that privilege should attach to this meeting.
  Notwithstanding, we offered to say there would be no deem, no waiver, 
of any attorney-client privilege. We did that. That was not the White 
House that came forth. They rejected that. It was only when we said we 
were going to issue a subpoena that they then said, well, here we are 
coming forth. Again, I think we have to discern the legitimate attempts 
at compromising, which absolutely comes from my colleagues on the 
Democratic side on the Banking Committee but was not supported by the 
actions and activities of the White House. That we have to distinguish.
  I am very much concerned that we would be prevented from pursuing 
other avenues of investigation in regard to White House contacts with 
the President's personal lawyers and we would not be able to see if 
there were other Whitewater joint defense meetings, and that is a very 
critical point.
  Now, Mr. President, let me go to something that I do not take 
lightly, but I have mentioned it and I will mention it again. There are 
political overtones. Make no mistake about it, there absolutely are.
  But you see, Mr. President, when the President of the United States 
says, as he has on a number of occasions, on March 8, in a press 
conference in connection with the appointment of Mr. Cutler, during 
that press conference the President was asked about the possibility of 
asserting privilege, and he gave the following response. He said, ``It 
is hard for me to imagine a circumstance in which that would be an 
appropriate thing for me to do.''
  I believe Senator Thompson answered quite compellingly, and argued 
that, what does he do, he goes and raises a privilege that has never 
been raised because he did not want to be in an embarrassing position 
when he said ``executive privilege,'' when he spoke quite clearly on 
this on a number of occasions.
  By the way, March 8, 1994, is a very important date. Let me tell you 
why. Because that was 4 months after this meeting. He knew about that 
meeting. Understand what he said. ``It is hard for me to imagine 
circumstances in which that would be an appropriate thing for me to 
do.'' This was not an event that transpired after March 8. This took 
place 4 months before.
  This is not the first time that the President made that assertion. 
Indeed, on April 5, 1994, I believe in North Carolina, again in 
response to a question, the President said, ``I look for no procedural 
ways to get around this. And I tell you, you want to know, I'll give 
you the information. I have done nothing, and I will be open and above 
board. I have claimed no executive privilege.'' Indeed, he did not 
claim that, and obviously the interpretation is, ``nor will he.''
  Remember, this was 5 months to the day after this meeting. So this is 
not a circumstance that occurs after something that will be 
extraordinary, not anticipated.
  So, Mr. President, I have to say that we have gone that extra step. 
We have gone that extra mile. We have gone to the point that we may 
have even--and I believe we have, because if you look at the points 
that we have conceded in that letter, which I do not have here, a 
letter where the five points initially were submitted to us, that we 
have indicated that we are not going to say this is a waiver of 
privilege, although we do not believe there is a privilege, nor will we 
raise and look to examine Mr. Kendall.
  I believe if you look at all the constitutional authorities where 
privilege has been waived by the actions of the parties, that is, by 
those who are nonlawyers or those who are nonparticipants or outside of 
the scope of the legal arguments, you waive that privilege. Where 
people who attended that meeting speak about that meeting, a waiver of 
that privilege is, notwithstanding that we agreed on points 2 and 3, 
that we suggested that the committee would limit its testimony and 
inquiry about this meeting to the White House officials who attended 
it, that we would not seek to examine Mr. Kendall.

  I believe that constitutionally we have a right to actually examine 
Mr. Kendall, absolutely. If that meeting was not privileged, we have a 
right to examine him. But we said, ``Look, we want the notes. We don't 
want to create a situation where you have this argument.'' That is why 
we came up with 

[[Page S18988]]
this offer. Understand, this is not the White House's offer. It was our 
offer. Now, they have accepted, and they attempted to put additional 
conditions.
  Indeed, if my House colleagues go along with this, fine. We will go 
forward. But I would only suggest if the effort was made, and the 
effort has been made and has been made by both the minority and the 
majority on this committee for months now, and as it relates to these 
specific notes for 3 weeks, hard bargaining, working at it, giving 
suggestions, that that which we put forth in good faith could have been 
and should have been accepted. That is unfortunately the kind of 
situation that we have encountered as we attempt to gather the facts 
and the information.
  So I put it to you that I would hope that we would get these notes, 
that we would get them without the necessity of having to go to court. 
I hope that the White House will make them available. If our brethren 
in the House agree, then that resolves it, then so be it. But I do not 
believe, in good conscience, I could recommend to my colleagues that we 
delay the implementation mechanism with the caveat that the door will 
be open.
  It is open, even after we pass this, if we do pass this resolution, 
to go forward and seek enforcement of it. I made the commitment that I 
would move to withdraw that enforcement action upon the proffer of the 
notes of Mr. Kennedy. I yield the floor.
  Mr. BUMPERS addressed the Chair.
  The PRESIDING OFFICER. Who yields time?
  Mr. D'AMATO. Mr. President, how much time do we have on each side?
  The PRESIDING OFFICER. The Senator's side has about 12 minutes, and 
there is 17\1/2\ for the other side.
  Mr. BUMPERS. Mr. President, how much time does this side have 
remaining? Parliamentary inquiry, how much time is left on our side?
  The PRESIDING OFFICER. There is approximately 17\1/2\ minutes.
  Mr. SARBANES. I yield 3 minutes to the Senator from Arkansas.
  The PRESIDING OFFICER. The Senator form Arkansas.
  Mr. BUMPERS. Thank you, Mr. President.
  Mr. President, just as a country lawyer who tried a few criminal 
cases over a period of 20 years--I never had a case involving attorney-
client privilege, so I do not profess to be an expert on it--I would 
say based on listening to some of the scholars on some of the talk 
shows and what I have read, and I have a couple bright youngsters on my 
staff that I have discussed it with, I would say it is probably a 50-50 
proposition if it went to court. But I am not here really to debate 
that.
  The thing that is mildly perplexing to me is, I was watching the news 
this afternoon, CNBC and CNN, and they kept saying the Senate 
Whitewater committee is seeking a subpoena to force the President to 
hand over the notes of young William Kennedy taken at this infamous 
meeting and in the President's attorney's office.

  As I understand it, that is not really the issue here. The issue here 
is whether or not we will agree to allow the President to hand over the 
notes, which he has agreed to do and to the chairman and the members of 
his party's side of the committee agreed to. The committee agreed to 
it. I thought it was a fine resolution of the matter. But I also think 
that the President was entirely within his rights to say, ``I will be 
happy to hand these notes over to you, but I do not want to waive the 
attorney-client privilege forever from now on on any other meeting.''
  Is that a fair statement? Let me ask the Senator from Maryland, is 
that a fair statement?
  Mr. SARBANES. What the President said is, ``I need the same assurance 
that the committee was going to give, because they saw it as being 
reasonable from other investigatory bodies, like the independent 
counsel and the House committees.'' The independent counsel has agreed 
to do it. If you could get it from the House committees, then the 
President could turn over the notes, he would not waive the attorney-
client privilege, you would not have intruded into the privilege, and 
yet the notes would have been made available to the Senate committee.
  It is a perfectly reasonable position.
  Mr. BUMPERS. It, to me, is like the best of all worlds, I say to the 
Senator. I would have hoped that instead of getting into this all-day 
debate in the Senate, that the chairman and ranking member of the 
Senate committee, their counterparts in the House, the independent 
counsel--I do not know that there is any great sense of urgency about 
these notes--and the three of them, that group sit down and agree to 
this.
  One additional minute.
  Mr. SARBANES. I yield one additional minute.
  The PRESIDING OFFICER. The Senator's 3 minutes have expired.
  Mr. SARBANES. I yield an additional minute.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. BUMPERS. So all I am saying, Mr. President, is it seems it is not 
a constitutional crisis. This does not reach the level of some of those 
infamous battles of the Watergate hearings or even Iran-contra. But it 
just seems to me that in the interest of comity, in the interest of 
taking advantage of an offer by the President to say here they are, 
take them, but you know, let us let the House and the independent 
counsel both say, as well as the Senate, that we are not waiving, that 
the White House is not waiving.
  The President is personally not waiving the attorney-client 
privilege. I daresay there is not a Member of the U.S. Senate that 
would have made a more generous offer under the same conditions than 
the President of the United States has made in this case.
  So I yield back such time as I have to the Senator from Maryland.
  Mr. SARBANES. Mr. President, I yield myself 1 minute.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Maryland.
  Mr. SARBANES. I say to the Senator from Arkansas that it has been 
suggested to us by the courts, which have said, ``Each branch should 
take cognizance of an implicit constitutional mandate to seek optimal 
accommodation through a realistic evaluation of the needs of the 
conflicting branches in the particular facts situation.''
  In other words, if we can work out an accommodation, that is what we 
ought to do, not provoke a confrontation. And, Attorney General William 
French Smith noted, ``The accommodation required is not simply an 
exchange of concessions, or a test of political strength, it is an 
obligation of each branch to make a principled effort to acknowledge 
and, if possible, to meet the legitimate needs of the other branch.''
  As I say, I think, in this instance, if we work at it, we can get the 
notes and not trespass on the attorney-client privilege. That ought to 
be the objective.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. SARBANES. I yield to the minority leader whatever time he may 
use.
  Mr. DASCHLE. Mr. President, I thank the ranking member of the 
committee. I appreciate having the opportunity to express myself on 
this important matter. Today, Mr. President, is December 20. The 
holiday season is upon us, and the Senate is in session. A casual 
observer of the events of the past few weeks --the Government 
shutdowns, the rancorous budget negotiations--might expect to find the 
Senate debating such critical issues as how we provide for our 
children's future and our parents' retirement, or how we protect our 
precious natural resources while still balancing the Federal budget. 
One might expect.
  Sadly, we are not debating such important subjects. No, we are here 
on the Senate floor debating an issue in which the American people have 
said repeatedly they have very little interest--Whitewater--or, more 
specifically, the Senate inquiry into Whitewater.
  How did we end up here? How did the Senate come to find itself 
considering a resolution that pushes this body toward an inevitable 
and, in my view, wholly unnecessary confrontation with the White House?
  The answer, Mr. President, is that the Senate finds itself here by 
design.
  The majority in the Senate, faced with the prospect that the 
exhaustive investigation into the Whitewater matter will produce little 
in the way of substantive results, has crafted a legal and 
constitutional confrontation. This confrontation, the majority hopes, 
will 

[[Page S18989]]
finally accomplish what all the Whitewater Committee hearings, 
depositions, and subpoenas have failed to accomplish: political damage 
to the President. That is why the Senate is on the floor, on December 
20, debating a Whitewater resolution.
  Mr. President, other Members on both sides of the aisle have laid out 
the legal arguments surrounding this resolution. And make no mistake 
about it, there are some difficult legal questions at issue here. We 
all recognize and accept there are good-faith differences of opinion on 
those issues.
  But let us be honest. If this debate were solely about the legal 
merits of the White House's assertion of the attorney-client privilege, 
and general waivers of that privilege, then I doubt we would even be 
having this debate at all.
  That, Mr. President, is precisely what is so troubling about this 
whole matter. It is not a dispute about conflicting interpretations of 
law. It is not a dispute about the arcania of the attorney-client 
privilege, or attorney-work product privileges, or any legal privileges 
at all. This is about an old-fashioned, hardball political 
confrontation, pure and simple.
  I am not an attorney, but let me briefly state my perspective. The 
attorney-client privilege is a basic, fundamental tenet of our legal 
system. The privilege reflects the long-held belief of the courts that 
confidential communications between attorneys and their clients should 
remain confidential. Every American has the right to talk frankly to 
his or her lawyer. Indeed, the courts, in creating this privilege, 
believed that the protection of the privilege would lead to a surer 
rendering of justice in our legal system. The President of the United 
States, like every other American, is entitled to the protection of the 
law.
  So this resolution represents a dangerous encroachment on a basic 
protection in our legal system. It is also unnecessary.
  The proponents of this resolution conveniently omit a very crucial 
fact, and that fact is that the White House has repeatedly offered to 
provide the notes in question--the notes taken by associate White House 
counsel William Kennedy, the notes that are the target of the special 
committee's subpoena.
  Let me repeat that. The White House is willing to provide--it has 
been said many, many times--the documents that the committee seeks. 
There is no question about that. All the White House asks is that the 
special committee assist in efforts to secure the agreement of the 
independent counsel and the House that the White House has not waived 
its attorney-client privilege.
  In fact, Mr. President, the White House apparently has already 
secured the concurrence of the independent counsel that no waiver will 
occur when the notes are provided to the Senate committee. So the only 
remaining issue is the position of the House of Representatives.
  So let us, very briefly, review the facts. The attorney-client 
privilege is a fundamental tenet of our legal system.
  President Clinton has legitimately asserted the privilege in this 
case.
  The White House has offered to provide the notes to the committee, 
provided the attorney-client privilege is respected.
  The Special Committee will receive the notes from the White House 
immediately if it will only agree to this limited, reasonable 
condition.
  Those are the facts. That is all there is to it. It is not 
complicated.
  The proponents of this resolution seem determined to seek conflict, 
when conciliation is within easy reach. Before we vote on this 
resolution, I think everyone should ask ourselves why that is. Why, 
when there is a solution at hand, should we pursue a deliberate 
strategy of conflict?
  Every Member of the Senate knows that a President's private legal 
interests may, from time to time, legitimately affect the official 
operations of the office of the Presidency. In fact, I can imagine no 
group that might be more sensitive to how private and public interests 
can sometimes converge than the Members of the U.S. Senate.
  Let there be no misimpression: The precedent set in this case may 
involve the President of the United States, but it will affect Members 
of the U.S. Senate. We will be bound--directly--by what we decide 
tonight.
  The pending resolution is an unnecessary, headline-seeking ploy, 
designed for one reason and one reason only: to damage the President 
politically. I hope that my colleagues on the other side of the aisle 
will reconsider the course they have chosen.
  I encourage my Republican colleagues to resist the temptation to 
score political points.
  We have serious work to do. Let us stop wasting our time on a cynical 
political exercise and get on with that work. I hope that all Senators 
will vote for the Sarbanes amendment.
  I yield the floor.
  Mr. D'AMATO. Mr. President, I yield 6 minutes to the Senator from New 
Mexico.
  The PRESIDING OFFICER. The Chair recognizes the Senator from New 
Mexico.
  Mr. DOMENICI. Thank you, Mr. President. First, I want to compliment 
the distinguished Senator from New York, Senator D'Amato, chairman of 
this committee, because I do believe that this has been a very delicate 
set of hearings. They have lasted a long time. They have involved an 
awful lot of discovery work, trying to get to the truth. I truly 
believe he has conducted this committee in a very, very proper and 
propitious manner.
  We are here tonight in one of the rare episodes and events in this 
committee on Whitewater's history, where we have not been able to 
agree. On most matters of importance, under the leadership of Senator 
D'Amato, with the excellent cooperation of the distinguished Senator 
from Maryland, Senator Sarbanes, most serious confrontational matters 
have been resolved amicably and, if not directly in the manner sought 
by the majority party, at least to the satisfaction of the majority and 
the chairman and with the cooperation of the minority. But somehow or 
another we find ourselves tonight in a position that is different than 
any of the others.

  I want to say as a practicing attorney I never had an opportunity to 
involve myself in the privilege that attorneys have with reference to 
their work product for their clients. I understand that it is a 
serious, serious thing but I also understand that this attorney-client 
privilege, to keep confidential conversations between lawyers and their 
clients, does not really exist just because the client says so or 
because an attorney claims it is so. It has to meet certain tests.
  Let me talk a little bit about the tests and why I think the 
President should have given this subject matter over to the committee 
in August of this year. For those who say we can resolve it here 
tonight, and that the President wants to cooperate, let me tell you 
that this committee started trying to get this information in August of 
this year and we are almost at Christmas. In fact, I believe it started 
August 25. On Christmas day--it will be the months of September, 
October, November, December, that is 4 months. So it has not been with 
genuine accommodation that the President's lawyers have seen fit to 
help with this truth-requiring set of facts.
  Let me say that 20-some years ago Chief Justice Burger noted that 
when privileges are called upon ``it is not lightly created nor 
expansively construed for they''--that is the privileges--``are in the 
derogation of the search of truth.''
  In other words, if you are looking for truth, you have to construe 
this kind of privilege narrowly because it is in derogation of finding 
the truth. It keeps the truth hidden, because there is a real reason 
for hiding it. So it is to be construed narrowly.
  Let me move on and tell you what I found from my reading from the 
staff work that lawyers have put into this. Let me read you my 
definition of the attorney-client privilege, and I believe this is 
rather well settled. When I read through these factors--think of the 
facts in this case. My good friend, Senator Bumpers, says this is a 50-
50 case. I believe this is a 90-10 case, maybe a 95-5 case.
  First of all, these are the elements: First, where legal advice of 
any kind is sought from a professional legal advisor; second, acting as 
such; third, the communications relating to that purpose; fourth, made 
in confidence by the client; fifth, are at the client's insistence; 
sixth, permanently protected 

[[Page S18990]]
from disclosure by himself or the legal advisor; and seventh, unless 
waived.
  Now, Mr. President, and fellow Senators, while I have not been an 
integral part of the Whitewater hearings, I am on the committee. At 
least I am of late, and I believe it is my responsibility before I vote 
tonight, to at least discuss briefly how those qualifications and 
qualities are not met in this case.
  First of all, the meeting was held to discuss President Clinton's 
private financial legal matters--but not all of the attorneys present 
at the meeting were private Clinton attorneys. Instead, three of the 
lawyers from the White House Counsel's office, and Bruce Lindsey, who 
was White House policy advisor responsible for dealing with media 
inquiries into Whitewater, were present at the meeting with Clinton's 
private lawyer. Therefore, because they were public employees with no 
responsibility for the management of the President's pre-Whitewater 
affairs, their presence precludes the claim of personal attorney-client 
privilege by the President. Their mere presence waives it. It is no 
longer a privileged subject matter.
  One of the stated purposes of that meeting was to discuss pending 
inquiries into Whitewater.
  Mr. D'AMATO. How much time remains?
  The PRESIDING OFFICER. The Senator has 5 minutes and 40 seconds.
  Mr. D'AMATO. I yield 3 minutes and 40 seconds to the Senator from New 
Mexico.
  Mr. DOMENICI. Let me proceed as quickly as I can because I want to 
give Senator D'Amato as much time as he can to wrap this up.
  The President's claim of attorney-client privilege, as I see it, 
rests on very shaky legal ground, and there are other reasons that it 
does not fit these qualities that I have just described, and I will 
have those printed in the Record.
  I believe this committee has a responsibility to the people of the 
United States. It is not wonderful or marvelous or something we all 
think is good, that we have to have these hearings. But we have some 
responsibilities. When facts of the type that are before us here 
present themselves, we have a responsibility and the Senate confirmed 
that responsibility by the adoption of a resolution. It said ``Go find 
out the truth,'' as I understand it. The chairman has been seeking the 
truth with reference to these various incidents and episodes. This one 
is a sad one because it centers around the office of a man who 
committed suicide, who had worked there, and I am not bringing up the 
suicide to rehash it. It is difficult. What happened there is not easy 
for us to go after, but it does mean that we should search for the 
truth.
  Clearly, the President owes us some explanations here, of those who 
work for him. He owe us some explanations, some facts. It is high time 
we get these facts, because essentially, they were made in a setting 
that was not part of the attorney-client relationship as the common law 
in the United States defines it, and should be made available to the 
committee.
  I have more observations. Mr. President, today we will hear a lot 
about the attorney-client privilege. As an attorney, I understand the 
need to keep confidential certain conversations between lawyers and 
their clients. I also understand the need for a President to consult 
with his private attorneys on matters which occurred in his private 
life prior to his coming to the White House.

  However, in this case I believe that the President has gone too far, 
and in fact has purposefully sought to impede the special committee's 
search for the truth by hiding behind a tenuous claim that the 
attorney-client privilege protects the notes of a meeting between the 
President's private lawyers and his political advisors in the White 
House counsel's office.
  Over 20 years ago, the Supreme Court examined another President's 
claim of privilege with respect to documents sought by congressional 
investigators. In rejecting President Nixon's claim of executive 
privilege, Chief Justice Burger noted that privileges, which prohibit 
the discovery of relevant evidence, ``are not lightly created nor 
expansively construed, for they are in derogation of the search for 
truth.''
  By raising what is, at best, a tenuous claim of attorney-client 
privilege, it is clear that the President seeks at every opportunity to 
frustrate the Whitewater Committee's search for the truth. I hope that 
with this vote, my colleagues will agree that we should get on with the 
investigation and put an end to the White House's needless stall 
tactics. This investigation must begin before it can end, and this vote 
finally will put an end to the delay and allow the dispute over the 
attorney-client privilege to be decided in a court of law.
  Everyone recognizes that the President has a legitimate right to 
assert the attorney-client privilege under the proper circumstances. 
However, the facts of this case clearly indicate that the President is 
not entitled to assert the privilege.
  The elements of the attorney-client privilege are well-settled: Where 
legal advice of any kind is sought from a professional legal advisor 
acting as such; the communications relating to that purpose made in 
confidence by the client; are at the client's insistence permanently 
protected from disclosure by himself or the legal advisor unless the 
protection is waived.
  The notes of the November 1993 meeting at the office of President 
Clinton's private attorneys are not protected by the privilege for at 
least three reasons:
  First, the meeting was held to discuss President Clinton's private 
financial and legal matters, but not all of the attorneys present at 
the meeting were private Clinton attorneys. Instead, three lawyers from 
the White House Counsel's office and Bruce Lindsey, who was White House 
Policy Advisor responsible for dealing with media inquiries into 
Whitewater, were present at the meeting with Clinton's private lawyers.
  Because they were public employees with no responsibility for the 
management of the President's pre-White House affairs, their presence 
precludes any claim of the personal attorney-client privilege by the 
President.
  Second, one of the stated purposes of the November meeting was to 
discuss the pending press inquiries into Whitewater. At the time of the 
meeting, the media began to question the White House about allegations 
of improper handling of SBA loan funds by the President and Jim 
McDougal and about the pending RTC criminal referral on Madison 
Guaranty. Clinton's private attorneys convened with White House 
advisors to discuss how to respond to these media inquiries.
  In order to gain the protection of the attorney-client privilege, 
confidential communications must relate to legal advice. The privilege 
governs performance of duties by the attorney as legal counselor, and 
if chooses to undertake other duties on behalf of his client that 
cannot be characterized as legal, then the communications related to 
those additional duties are not protected. In this case, his attorneys 
met to discuss media and political strategy. These activities clearly 
are not legal in nature, and thus the notes should not be protected.
  Third, President Clinton waived the attorney-client privilege by 
allowing Bruce Lindsey, who was neither his private attorney nor a 
member of the White House Counsel's office, to attend the meeting. At 
the time of the meeting, Bruce Lindsey was White House Policy Advisor 
and a spokesman for the Administration. He advised the President on 
media and public relations matters, and was specifically tasked to 
handle Whitewater press inquiries.
  The law implies a waiver of the attorney-client privilege whenever 
the holder of the privilege voluntarily allows to be disclosed any 
significant part of a confidential communication to one with whom the 
holder does not have a privileged relationship. Since Bruce Lindsey was 
neither a White House attorney nor a private attorney, he enjoyed no 
attorney-client privilege with the President. The fact that the 
President allowed him to attend the meeting waives the attorney-client 
privilege with respect to matters discussed at the meeting.
  The President's claim of attorney-client privilege rests on very 
shaky legal ground. With that in mind, I think that if my colleagues 
examine the White House's behavior concerning these notes, coupled with 
that of Mr. Kennedy and his private attorney, they should conclude that 
the only reason that the White House has raised this 

[[Page S18991]]
issue is because the President seeks to delay for as long as possible 
the legitimate fact-finding responsibility of the committee. Up until 
this point, the committee's work largely has been bi-partisan, but the 
White House's stonewalling has caused our work to become highly 
politicized. This is unfortunate.
  The special committee has sought Mr. Kennedy's notes through 
reasonable means for quite some time, and only recently has the 
President chosen to assert the attorney-client privilege to frustrate 
our efforts to obtain them. I understand that the counsel for the 
special committee asked the White House for these notes several months 
ago, and that the request went unanswered until only recently, when the 
White House refused to make them available.
  Because we were unable to obtain the notes from the White House, the 
committee then was forced to call Mr. Kennedy to testify about the 
meeting. While before the committee, he asserted that he would refuse 
to produce the documents because his client, the President, had 
asserted certain privileges, including the attorney-client privilege.
  Upon Mr. Kennedy's assertion of privilege, the chairman of the 
committee, Senator D'Amato, agreed to allow the parties to submit legal 
briefs on the issue. After rejecting the arguments of counsel on 
attorney-client privilege and the work product doctrine, the committee 
voted to compel, Mr. Kennedy to produce the documents. It then served a 
subpoena on Mr. Kennedy's attorney, who had accompanied him to his 
appearance before the Committee when the issue of the attorney-client 
privilege arose.
  Upon being served, Mr. Kennedy's attorney informed the committee that 
he ``was not authorized'' to receive the subpoena. This despite the 
fact that he sat with Mr. Kennedy during his testimony and previously 
had received correspondence from the committee on Mr. Kennedy's behalf. 
Because of this additional unnecessary delay, the committee was forced 
to reconvene and reissue the subpoena to Mr. Kennedy personally.
  One they realized that the committee did not intend to abandon its 
request for Mr. Kennedy's notes, the White House tried another delay 
tactic: they sent up an ``offer'' to the committee to release the 
notes, subject to certain conditions. In fact, the White House offered 
five conditions before they would turn over the notes. Two of these 
conditions were agreed to previously by the Republican counsel for the 
special committee.
  The other three were essentially nonoffers. The conditions were so 
vague and imprudent that the White House must have known that we would 
not agree to them. One condition required the committee to obtain from 
the independent counsel and other congressional investigatory bodies an 
agreement to abide by the terms of the White House's offer to the 
special committee. Imagine that: the White House asked the Senate 
Whitewater Committee to interfere with the independent counsel's 
investigation of this matter. Is this not precisely what the White 
House said we should not do when the independent counsel originally 
undertook his investigation? Clearly all of this was done just for the 
purpose of delay.
  Throughout this entire matter, however, the White House has claimed 
to the press that the notes contain nothing to implicate the White 
House in any wrongdoing and that the special committee is engaged in a 
wild goose chase. Other White House aides have claimed to the media 
that they have nothing to hide and that Chairman D'Amato and the 
Special Committee are undertaking a political fishing expedition.
  They claim to have nothing to hide, yet they fight the committee at 
every turn. This policy of stonewalling while claiming that the 
investigation is politically motivated sounds an awful lot like the 
tactics employed by the President 20 years ago in response to another 
congressional investigation. In fact, here is what Charles Colson, one 
of President Nixon's advisors said about the way the Clinton White 
House is handling this investigation: ``I can't believe my eyes and 
ear. These people are repeating our mistakes.''
  Not only are former advisors to President Nixon amazed by the way the 
White House has handled this investigation--the New York Times 
editorial page yesterday also questioned the President's tactics. In 
its editorial, the Times noted that the White House's invocation of the 
attorney-client and executive privilege was ``a distortion of the 
doctrine's history to raise it to block a legitimate congressional 
inquiry into the Clinton's Arkansas financial dealings and the official 
conduct of senior administration aides.'' The Times goes on to 
acknowledge that absent a ``decent resolution, the Senate has no choice 
but to go to court to enforce the Committee's subpoena.
  Mr. President, I too, think that we have no choice at this point but 
to go to court. It is unfortunate that President Clinton and his 
advisors have chosen to delay and ridicule the committee's efforts in 
the press. The time has come to get on with the business of the 
Whitewater Committee, and to do so again in a less political manner. 
Allowing a court to decide this issue is the only way to achieve those 
goals.
  Mr. SARBANES. I yield 3 minutes to the Senator from Nevada.
  The PRESIDING OFFICER (Mrs. Hutchison). The Senator from Nevada.
  Mr. BRYAN. I thank the distinguished Senator from Maryland.
  Mr. President and colleagues, I intend to offer a more lengthy 
statement, but I was tied up on other matters. I want to offer a 
dimension on the attorney-client privilege that I think is helpful for 
our colleagues to be aware.
  The question of attorney-client privilege has arisen on a number of 
occasions recently and I just share an experience of how it was handled 
in a bipartisan, and I think a most responsible fashion.
  My colleagues are much aware in the recently concluded Packwood 
matter there was the issue of a diary. Aside from that, during the 
course of our investigation, a number of times arose in which a 
question of attorney-client privilege was asserted. First let me say, 
on a bipartisan basis with every member of the Ethics Committee in 
concurrence, we agreed with respect to those assertions of privilege, 
that we ought to subject those to an independent outside nonpartisan 
review.
  In that context, by coincidence, in light of the role that this was 
later to play, I engaged the services of Ken Starr, and he 
independently reviewed and the committee accepted his recommendations 
in each and every case. Not only were there questions of conversation 
but there were also questions of documents.
  In a similar vein to the concern that the President of the United 
States has legitimately voiced today, Senator Packwood's counsel was 
understandably concerned that if any particular document was released, 
that that may be deemed a waiver with respect to other documents that 
were covered under the attorney-client privilege.
  Let me say in that context, once again, the committee agreed in 
bipartisan fashion not to assert that the privilege has been waived 
with respect to any subsequent conversation or any subsequent document 
which might come to the attention of the Ethics Committee that would be 
arguably a predicate for arguing that a prior submission of a document 
constituted a waiver.
  That is the bipartisan way of doing it. The President faces a 
Hobson's choice. In one instance he has come forward and indicated he 
wants to make the contents of those notes available--no ifs, ands or 
buts. The problem that he faces in doing so without getting the signoff 
by others who would have jurisdictional basis to proceed, is that the 
waiver doctrine might be asserted against him.
  I think what my colleague, Senator Sarbanes, has done by way of the 
amendment that he has offered here today provides a responsible way for 
us to achieve what we ought to be interested in: That is, the contents 
of the document. Yet we respect and recognize the attorney-client 
relationship.
  Madam President, as a member of the Banking Committee I oppose this 
resolution, and I am very disappointed that the Republican members of 
the committee are taking this step. I believe it is premature and 
counterproductive and totally partisan.
  The heart of this issue revolves around notes taken by Associate 
White 

[[Page S18992]]
House Counsel William Kennedy at a meeting held on November 5, 1993. 
Notes that have already been offered to the Banking Committee.
  This meeting raises several legitimate and serious attorney-client 
privilege issues that must be resolved before the Senate charges ahead 
into these unchartered waters. We may be setting precedents here today 
that have far reaching implications.
  For those truly interested in knowing the content of Mr. Kennedy's 
notes, and in a timely manner, this resolution will only retard any 
efforts to secure those notes which have already been offered to the 
committee. Only through good faith negotiations will we be able to 
accomplish the goal of securing the notes and protecting legitimate 
privilege issues at the same time.
  The Supreme Court has stated that the Attorney-client privilege ``is 
the oldest of the privileges for confidential communications known to 
the common law.''
  The purposes of the privilege are to encourage full and frank 
communication between attorneys and their clients and to protect not 
only the giving of professional advice to those who can act on it but 
also the giving of information to the lawyer to enable him to give 
sound and informed advice.
  The privilege applies with equal force among a client's attorneys, 
whether or not the client is present during the conversation. It is 
well-settled that the attorney-client privilege extends to written 
material reflecting the substance of an attorney-client communication.
  Every person at the November 5, 1993 meeting was an attorney who 
represented the Clintons in either their personal or their official 
capacities. As an attorney myself and a former attorney general, I 
strongly believe this meeting was fully covered by the attorney-client 
privilege.
  I dare say any citizen of this country who was told he could not have 
a confidential communication with his attorney would be outraged.
  This is a crucial point: This all could be avoided if the Senate 
would take the same position that Special Prosecutor Kenneth Starr took 
just yesterday when he agreed that the release of the document did not 
constitute a waiver of the President's privileges.
  How foolish the Senate looks today--wasting our time and resources--
when this could be so easily resolved.
  Any independent observer must be drawn to the conclusion that the 
reason we are forcing this issue is an attempt to embarrass the 
President. Why else would we not take the same approach that the 
independent prosecutor has taken?
  If the President were to turn over these documents without an 
agreement on the privileges, what would be the consequences?
  Clearly what we have here is an attempt by the majority to put the 
President in a catch-22 situation. If he releases the document without 
first securing an agreement, he could be waiving his attorney-client 
privileges with his attorney David Kendall on all Whitewater related 
matters. If he exercises his legitimate privileges, he is accused of a 
coverup.
  The courts will prove the President is taking the legally appropriate 
step in exercising his attorney-client privilege on this meeting. But 
we all know he will suffer from a public perception that he is hiding 
something. That is why the majority is forcing this issue today.
  It is clear how this issue should be handled if scoring political 
points were not the main goal here.
  The Senate's most recent experience with the attorney-client 
privilege claim arose during the Ethics Committee proceedings against 
Senator Bob Packwood.
  Apart from the diary dispute, the Ethics Committee had an assertion 
by Senator Packwood that certain other documents were covered by the 
attorney-client or work-product privileges. To resolve that claim, as 
Chairman of the Ethics Committee, I asked Kenneth Starr to make 
recommendations to the committee and both parties agreed in advance to 
accept his recommendations.
  With respect to the diaries, the committee agreed ``to protect 
Senator Packwood's privacy concerns by allowing him to mask information 
dealing with attorney-client and physician-patient privileged matters, 
and information dealing with personal, private, and family matters.
  Kenneth Starr reviewed Senator Packwood's assertions of attorney-
client privilege. The committee abided by all of Mr. Starr's 
determinations and did not call upon the court to adjudicate any of the 
attorney-client privilege claims.
  In addition, the Ethics Committee on other occasions agreed with 
Senator Packwood's attorney upfront that to provide documents did not 
waive the attorney-client privilege. Let me read from one of the 
documents we released. This is a conversation between Mr. Muse, one of 
the Senator's attorneys, and Victor Baird, chief counsel for the Ethics 
Committee.

       Mr. Muse. Victor, what I don't want to do is get on a 
     slippery slope with regard to waiver of any of the issues you 
     and I have talked about, and with reference to your letter of 
     January 31 on the other hand, there is a date that can be 
     fixed based on the memorandum which attaches diary entries, 
     and I'm prepared to give you that, and identify and show it 
     to Mr. Sacks as a representative of Arnold and Porter, 
     provided it is understood there is no waiver. It would simply 
     reorient them to something they already know that they 
     received, if that's acceptable to you.
       Mr. Baird. Right. And we understand that by your sharing 
     the memo with them, and their being able to provide us with 
     the dating information that we want if you will, that it is 
     not going to waive the privilege so that we are entitled to 
     look at the memo or anything like that.
       Mr. Muse. All right.

  This is clearly a better precedent for us to follow if we want to act 
in a bipartisan, professional manner. If all we are doing is scoring 
political points, we should proceed on the path we are heading toward 
today.
  The administration has asked the committee to agree that turning over 
the notes does not waive attorney-client privilege. The independent 
prosecutor has already agreed and can now proceed with his 
investigation, getting the material we are seeking without a lengthy 
and costly court fight.
  Why cannot this committee and this Senate accept Judge Starr's 
judgment and follow the same course. That is what the Ethics Committee 
did and in a bipartisan unanimous manner.
  Which brings up another question. If there is a respected former 
judge who has been given an almost unlimited budget and staff of highly 
trained attorneys and investigators, doing a thorough investigation of 
this issue, what is the purpose of this Senate Whitewater 
investigation?
  The Senate will spend millions on this. We do not have the capability 
or resources as does Judge Starr. It is taking countless hours of 
Senate time when we have a government shutdown, and important 
legislation like welfare reform, that is more properly our focus.
  The administration has asked the Banking Committee to agree that to 
give us the Kennedy notes does not waive the attorney-client privilege. 
The independent prosecutor has already agreed and can now proceed with 
his investigation.
  The Senate should do the same. Put this resolution aside today. And 
let the Senate operate in a more professional, noncombative, and 
bipartisan approach. This debate is an extraordinary waste of time.
  Mr. D'AMATO. Madam President, I inquire how much time remains?
  The PRESIDING OFFICER. The Senator has 3 minutes and 19 seconds.
  Mr. D'AMATO. I have 3 minutes and 19 seconds?
  Madam President, why are we here? December 20, getting close, maybe a 
day or two, during this holiday time? Great events, budget pressures, 
Government technically shut down in some areas? It has been suggested--
politics, injure the President.
  Madam President, if one were to examine the facts, the facts will put 
that contention to rest. It is unfair. That is unfair.
  On August 25, 4 months ago, we requested this information. Let me 
tell you when we got what I considered to be the first really bona fide 
reply to our offer to say, ``You do not waive the lawyer-client 
relationship.'' That was us. We did that, the committee. We did not 
have to. We said, ``You do not have to waive it.'' We did not get a 
reply--and then here is the reply, and it was a conditioned acceptance 
with all kinds of conditions: No. 1, that we had to 

[[Page S18993]]
concede that the meeting was privileged. We do not. The White House 
could not even accept our proposal, the one that they are now 
attempting to get the House to accept, until 6 days ago.
  So why are we here now? Because, without us pushing forward, we would 
not have even had a conditional acceptance of our proposal. We would 
not have even had it. Six days ago was the first time. When did they 
finally accept our proposal that they are now trying to push through? 
Two days ago. So, when someone says, ``Why are you here December 20,'' 
it is because the White House has stonewalled us--stonewalled. The 
American people have a right to know. President Clinton made promises. 
He said, ``I will not raise privilege, I will not hide behind that.'' 
And he has broken those promises.
  The Senate has a right to know and we have a right to be dealt with 
in good faith. I do not lay this over to my colleagues on the other 
side. They have attempted to work together to get this information. But 
it is the White House.
  Madam President, those notes simply are not privileged. The people 
who took those notes were Government employees. Mr. Lindsey was not 
working in the White House counsel's office. Yet, notwithstanding that, 
we are still willing to say, fine, we will not say that any privilege 
that you might have would be waived. Give us the notes.
  I make an offer here, and I repeat it again. Mr. President, give us 
the notes. We will continue--even after we vote, I am willing to drop 
this matter, regardless of what the House does. We do not have to go 
and test this out. But keep your commitment to the people of this 
country. Keep your commitment. We should not be here. You, Mr. 
President, have created this problem that necessitates us going forth.
  Mr. SARBANES. Is there time remaining?
  The PRESIDING OFFICER. The Senator from Maryland has 1 minute, 45 
seconds.
  Mr. SARBANES. Madam President, the White House has tried very hard, I 
think, to provide information to the committee. This particular issue 
arose in November. The White House made several offers. The first was 
turned down. Then the White House said, look, we will give you the 
notes. We will provide these notes, but we want to be protected against 
the assertion that there has been a general waiver of the lawyer-client 
relationship--an eminently reasonable position.

  This committee recognized it as being reasonable because we agreed 
that the providing of the notes would not constitute a general waiver. 
The independent counsel has agreed to that.
  All that is left are the House committees, and I, for the life of me, 
cannot understand why they would not agree to it as well. So there is 
no need to press this matter to a constitutional confrontation between 
the Congress and the Executive. A procedure has been worked out. The 
committee, this committee, has recognized it. The independent counsel 
has recognized it. The House committees now need to recognize it, and 
then the notes can be produced.
  The White House has said as much in a letter to Chairman D'Amato 
today, that they would produce the notes immediately, once that was 
achieved.
  It is my own view that we should be working to achieve it. I am frank 
to say I think we should be part of a constructive effort to bring that 
solution about, and that is what this amendment would commit us to do.
  I urge its support.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. D'AMATO. Mr. President, I ask for the yeas and nays on the 
pending amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to the amendment, 
No. 3041, offered by the Senator from Maryland.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. LOTT. I announce that the Senator from Texas [Mr. Gramm] and the 
Senator from Delaware [Mr. Roth] are necessarily absent.
  Mr. FORD. I announce that the Senator from Hawaii [Mr. Inouye] is 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced, yeas 45, nays 51, as follows:

                      [Rollcall Vote No. 609 Leg.]

                                YEAS--45

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Bradley
     Breaux
     Bryan
     Bumpers
     Byrd
     Conrad
     Daschle
     Dodd
     Dorgan
     Exon
     Feingold
     Feinstein
     Ford
     Glenn
     Graham
     Harkin
     Heflin
     Hollings
     Johnston
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Pell
     Pryor
     Reid
     Robb
     Rockefeller
     Sarbanes
     Simon
     Wellstone

                                NAYS--51

     Abraham
     Ashcroft
     Bennett
     Bond
     Brown
     Burns
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Faircloth
     Frist
     Gorton
     Grams
     Grassley
     Gregg
     Hatch
     Hatfield
     Helms
     Hutchison
     Inhofe
     Jeffords
     Kassebaum
     Kempthorne
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Pressler
     Santorum
     Shelby
     Simpson
     Smith
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                             NOT VOTING--3

     Gramm
     Inouye
     Roth
  So, the amendment (No. 3041) was rejected.
  Mr. D'AMATO addressed the Chair.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. D'AMATO. Madam President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to the resolution, 
S. Res. 199, as amended. The yeas and nays have been ordered. The clerk 
will call the roll.
  The assistant legislative clerk called the roll.
  Mr. LOTT. I announce that the Senator from Texas [Mr. Gramm] and the 
Senator from Delaware [Mr. Roth] are necessarily absent.
  Mr. FORD. I announce that the Senator from Hawaii [Mr. Inouye] is 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced--yeas 51, nays 45, as follows:

                      [Rollcall Vote No. 610 Leg.]

                                YEAS--51

     Abraham
     Ashcroft
     Bennett
     Bond
     Brown
     Burns
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Faircloth
     Frist
     Gorton
     Grams
     Grassley
     Gregg
     Hatch
     Hatfield
     Helms
     Hutchison
     Inhofe
     Jeffords
     Kassebaum
     Kempthorne
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Pressler
     Santorum
     Shelby
     Simpson
     Smith
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--45

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Bradley
     Breaux
     Bryan
     Bumpers
     Byrd
     Conrad
     Daschle
     Dodd
     Dorgan
     Exon
     Feingold
     Feinstein
     Ford
     Glenn
     Graham
     Harkin
     Heflin
     Hollings
     Johnston
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Pell
     Pryor
     Reid
     Robb
     Rockefeller
     Sarbanes
     Simon
     Wellstone

                             NOT VOTING--3

     Gramm
     Inouye
     Roth
  So the resolution (S. 199), as amended, was agreed to.
  The preamble was agreed to.
  The resolution, with its preamble, is as follows:
  [The resolution was not available for printing. It will appear in a 
future issue of the Record.]
  Mr. D'AMATO. Mr. President, I move to reconsider the vote.
  Mr. CHAFEE. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. SANTORUM. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll. 
  
[[Page S18994]]

  The assistant legislative clerk proceeded to call the roll.
  Mr. GRAMS. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAMS. Madam President, I request that I be able to speak as in 
morning business----
  Mr. DOLE. If the Senator will withhold, let me indicate that there 
will be no more votes this evening. We do hope we can get an agreement 
on House Joint Resolution 132.

                          ____________________