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JIM LEHRER: Today’s three major Supreme Court cases are first tonight. The biggest decision may have been not to hear a case involving First Lady Hillary Clinton. The issue was attorney-client privilege and centered on notes of conversations between presidential lawyers and Mrs. Clinton. NewsHour regular Stuart Taylor of the American Lawyer and Legal Times is here for the details. The case began when, Stuart?
STUART TAYLOR, The American Lawyer: It began, well, it goes back for years in terms of negotiations between Independent Counsel Kenneth Starr and the White House over whether you could have certain documents, but it came to a head last summer when the White House decided to draw a line in the sand and say you may not have these notes of conversations between the First Lady and White House lawyers because they are protected by the attorney-client privilege, and Starr said, no, they’re not and subpoenaed them and precipitated the court battle which ended today.
JIM LEHRER: And the appeals court ruled–which the Supreme Court agreed with today–that they were not protected by attorney-client privilege. Now, we don’t know–we’ll get to that in a minute–we don’t know what the Supreme Court–
STUART TAYLOR: The Supreme Court didn’t exactly agree with it.
JIM LEHRER: Didn’t exactly agree, but the ruling that they were judging was the appeals court, so what did the appeals court say for turning down the White House lawyers’s appeal on this?
STUART TAYLOR: The U.S. Court of Appeals for the 8th Circuit ruled very broadly in an opinion by a Reagan appointee named Pasco Bowman in April, and it was just unsealed in May, that the attorney-client privilege never protects any conversation any government lawyer has with the President, the First Lady, or anyone else against a federal grand jury subpoena.
In practice, this means whenever an Independent Counsel like Kenneth Starr gets a federal grand jury which says whatever he wants to issue a subpoena, there will be no attorney-client privilege under the 8th circuit decision that the White House could advance; if Starr issues a subpoena tomorrow for what President Clinton told White House lawyers today, the attorney-client privilege does not stand in the way of that as far as the 8th Circuit is concerned.
JIM LEHRER: That’s because these lawyers are employees of the U.S. Government and are performing in an official function, is that correct?
STUART TAYLOR: That’s part of the reason they gave. And in a way it’s the United States claiming a privilege against itself because the people who want the documents are federal government agencies, federal prosecutors, federal grand juries, and the court of appeals stressed the interest in public disclosure and basically said, we’re not going to say that the government has a privilege against itself.
JIM LEHRER: Okay. Now, the Supreme Court did this today by doing nothing. Explain that process, this decision not to even take up this case.
STUART TAYLOR: Well, about 98 to 99 percent of all cases that people bring to the Supreme Court every year, 5,000 or so, are resolved by the court, saying–they’re what’s called petitions for certiorari. The Supreme Court doesn’t what hear most of them. 98 to 99 percent, all it says is certiorari denied, we’re not going to hear that case, we don’t think it’s important enough for us to spend our time on, we’re a court that makes law for the whole country, and we don’t think this case meets the criteria. That’s what they said about this case today. They had a certiorari denied at the top of the list of about 150 cases. You go down the list and you find this one. That’s it.
JIM LEHRER: So what does that leave for lawyers from here to the end of time to interpret?
STUART TAYLOR: Well, the familiar legal analysis is a denial of certiorari has no significance as a precedent at all. So it doesn’t mean that the Supreme Court couldn’t come to the opposite conclusion from what the lower court did in this case in some future case. All it means it they decided not to look at it now. That’s why I said earlier the Supreme Court didn’t exactly agree with it.
JIM LEHRER: I was wrong when I said that they–
STUART TAYLOR: Well, you were a little off. When it’s–now the lower court decision still is a precedent, and it’s a precedent that this President is stuck with. And when it’s not just you or me coming to the Supreme Court but the President of the United States and when his petition for certiorari says in its critical paragraph this lower court decision involved an extraordinary and unprecedented decision that will substantially impair the ability of the office of the President and other federal agencies to secure sound legal advice, this is more than the ordinary denial of certiorari. This is the Supreme Court saying to the President, nah, we don’t have time for that.
JIM LEHRER: Wow. Wow. And as a practical matter, what does this do–what does this do for–do we know what this do for Ken Starr’s case in the Whitewater matter? These go, by the way, these notes go to the grand jury in Little Rock, right?
STUART TAYLOR: Yes, they do. He gets the notes and most people in the White House have said there’s nothing much significant in those notes. I’m not so sure that’s true, but that’s what they’ve been saying. And he also now has a precedent locked in–the 8th circuit–and everything that comes out of Little Rock goes to the same court–that says he can have anything he wants from White House lawyers interviewing the President, the First Lady, the President’s advisers, anything. Now, there are ways they could still try and fight subpoenas. They could claim executive privilege, for example, which is a different privilege and one that for some reason they did not claim here.
I’ve been told it was because they didn’t want to seem too Nixonian about it, but so, in general, this enormously strengthens the hand of Kenneth Starr and every other independent counsel investigating the Clinton administration, to get documents prepared by White House lawyers, or to call the lawyers, themselves, into the grand jury and say, okay, you were the White House counsel, I want to hear everything you and the President ever discussed about Whitewater.
JIM LEHRER: So it does not mis-state the case to say this was an important matter today.
STUART TAYLOR: It was very important. Usually when it’s “Cert” denied, those of us who cover the court regularly say it doesn’t amount to much. This is different because the President is not an ordinary litigant.