Justices deny Starr access to Foster lawyer's notes Dissent may be sign of hope for prosecutor


WASHINGTON -- The Supreme Court, rebuffing Whitewater independent counsel Kenneth W. Starr yesterday for the second time this month, rejected his demand for a lawyer's notes that may link Hillary Rodham Clinton to a White House scandal.

At the same time, the 6-3 decision offered Starr some hints that he may succeed in obtaining other evidence in the overall investigation of President Clinton and his associates.

Yesterday's decision threw a protective shield of attorney-client secrecy over three pages of notes made five years ago by a private attorney for Vincent W. Foster Jr., then the deputy White House counsel. Nine days after that private conversation with his lawyer, Foster committed suicide, apparently distraught over the Clintons' deepening legal troubles.

The court majority, saying it was following "the great body" of decisions by lower courts, ruled that the attorney-client privilege of confidentiality remains in effect even after the client dies.

"Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel," Chief Justice William H. Rehnquist wrote.

"It seems quite plausible that Foster, perhaps already contemplating suicide, may not have sought legal advice if he had not been assured the conversation was privileged."

Rehnquist noted that the attorney-client privilege "is one of the oldest recognized privileges for confidential communications."

The chief justice acknowledged that two lower-court decisions have failed to protect that privilege after a client's death. One of those rulings was the one the court overturned yesterday, by the U.S. Circuit Court of Appeals, which had ruled in Starr's favor.

But, Rehnquist went on, a long list of rulings points in favor of the privilege after a client dies, and that makes the difference.

Starr's pursuit of the Foster notes relates to one part of his wide-ranging Whitewater investigation: the firing of White House travel office employees in 1993.

The prosecutor is trying to determine whether the first lady lied in denying that she directed the firings. Her involvement was suggested in a memo by a former aide who wrote that Foster regularly informed him of Mrs. Clinton's "insistence" that the travel office employees be replaced.

While the travel office dispute was heating up, Foster met with James Hamilton, a Washington lawyer. Hamilton told him that their conversation would remain secret.

Later, Hamilton's notes were subpoenaed, leading to the fight that the Supreme Court ended yesterday when the majority found that Starr "has simply not made a sufficient showing" to overturn the precedents in favor of after-death protection of client secrecy.

In a statement, Starr said he was "disappointed" by the ruling. He added: "The issue has obviously proved to be of considerable difficulty, as the divided opinions of the Supreme Court and the Court of Appeals reveal."

The White House, as well as several lawyers' associations, applauded the decision.

"It reaffirmed what virtually all lawyers have always understood to be the law," said Mark I. Levy, a lawyer who submitted a brief on behalf of the National Association for Criminal Defense Lawyers in support of Hamilton's position.

But the fact that Starr was able to gain the support of three justices yesterday, in the face of the majority's recital of court decisions protecting the privilege, suggests he may be within striking distance of gaining a majority for other fights over legal "privileges."

Justice Sandra Day O'Connor, joined by Justices Antonin Scalia and Clarence Thomas, argued that Starr should be given a chance to make a further plea in lower courts for the attorney's notes. O'Connor's dissenting opinion said client secrecy should yield in the face "of a compelling law enforcement need for information" that cannot be obtained anywhere than from a lawyer's notes.

The ruling came three weeks after the justices rebuffed Starr's bid for a quick ruling on his demands for evidence in the overall inquiry.

Today and Monday, a federal appeals court in Washington will hold hearings on two other claims of privilege that are intended to block Starr's demands for evidence.

One involves a claim by the Secret Service that its agents or officers should be shielded from having to testify about their observations of Clinton in the Monica Lewinsky sex scandal investigation.

The other case involves a claim by Bruce Lindsey, the White House deputy counsel, that attorney-client secrecy should shield him from having to testify before the grand jury about conversations he had that bear upon the White House's legal strategy for dealing with the Lewinsky matter.

Yesterday's Supreme Court majority, in ruling against Starr in the Foster case, stressed the long history behind the secrecy claim involving a private attorney and his client. By contrast, the

privilege against testimony that the Secret Service is now seeking has never been asserted before, and the claim of attorney-client privilege for a government lawyer dealing with others in government is of only recent vintage.

A federal judge ruled in Starr's favor and against both those privilege claims; the cases are likely to reach the Supreme Court later this summer or early in the fall.

Yesterday's decision was seen as more of a public relations problem than a legal setback for Starr, who may have other evidence implicating the first lady.

"Legally, I don't think it's damaging," said Stanley Brand, a Washington attorney who has been critical of the independent counsel. "But he overreached on this and got slammed by the court. It's another blow to Starr's credibility as a man of judgment."

Jonathan Turley, a George Washington University law professor who has favored some of Starr's demands for evidence, agreed that Starr's loss was "primarily symbolic rather than substantive." He added, "The three dissenting judges demonstrated that his argument was not viewed as preposterous or extreme."

Pub Date: 6/26/98

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