FOR PRESIDENT CLINTON, this has been one tough Supreme Court. A few weeks after a unanimous tribunal opened at least the prospect of a Paula Jones trial before Mr. Clinton leaves office, it stepped in to allow Whitewater prosecutors access to notes government attorneys made of their conversations with Hillary Rodham Clinton.
Whatever one thinks of the way the White House ducks and dodges as inquiries proceed about the Clintons' tangled legal affairs, the court's action potentially weakens the lawyer-client secrecy privilege. If carried to its logical (and illogical) conclusion, this could affect not only the executive branch but Congress and perhaps the judiciary as well. If a Senate chairman plots strategy with a committee's chief counsel, would their consultations be subject to grand jury subpoena? Indeed, if a Supreme Court justice were to discuss pending cases with one of his or her clerks, would this also be considered a public matter outside lawyer-client protection?
Although the Supreme Court left the way open for later, more definitive rulings if fishing expeditions get out of hand, such extreme examples are a warning of possible ramifications in the high tribunal's refusal to hear a White House appeal against a lower court ruling that Mrs. Clinton's musings are fair game for Whitewater independent counsel Kenneth Starr.
One thing that distinguishes the Hillary Clinton case, of course, is that she is not technically a government servant. There have been rulings, however, suggesting she is the functional equivalent of same. Although the White House has now turned over the notes in question to Mr. Starr and it may be that they add precious little to the Starr investigation, sooner rather than later, the Supreme Court will need to clarify its position on client-attorney relationships in government service.
Pub Date: 7/10/97