The White House Counsel and Whitewater: Government Lawyers and the Scope of Privileged Communications

Abstract

From the beginning of the Clinton Administration, the matters known collectively as Whitewater have almost constantly bedeviled the President and his staff, as well as the private attorneys who represent the President. Within the past two years, the investigations into Whitewater matters have given rise to two prominent controversies involving attempts to review the substance of between the lawyers who represent the President in his official capacity-the members of the Office of the White House Counsel-and those who represent him in his private capacity. One dispute involved a subpoena from a Senate committee, and the other involved a federal grand jury subpoena. The White House resisted both of these subpoenas, invoking the attorney-client privilege and the work-product doctrine. Each of these controversies raised a number of novel legal questions about the President's relationship with the lawyers in the Office of the White House Counsel as well as the relationship between those lawyers and the President's private counsel. Obviously, when the President seeks legal advice from his private lawyers, he (like any other citizen) can assert the attorney-client privilege in order to prevent the disclosure of those communications in a later court proceeding. But does the privilege also apply to communications between the President and lawyers who work for the President on the White House staff and are paid by the taxpayers? Does it matter if the party seeking the notes of such a communication is a congressional committee or a federal grand jury? Is any privilege waived if a non-lawyer member of the White House staff is present at the time of the communication? May the President's communications with White House lawyers be discovered if these lawyers later share them with his private lawyers? Does the work-product doctrine or the executive privilege also apply to any such communications? In addition to the legal questions that were raised, the controversies themselves-as well as the way in which one of them was resolved-raised certain issues about the practical realities of raising a privilege claim. Do political realities make it impossible for the White House to raise a claim of privilege, no matter how valid that claim may be?