June 8, 1998
Whether attorney-client privilege extends beyond death was argued before the U.S. Supreme Court today. The case involves notes Vincent Foster's lawyer took before the White House aide committed suicide. Independent Counsel Kenneth Starr wants them for the Whitewater investigation. Jim Lehrer discusses today's court session with Jan Crawford Greenberg of the Chicago Tribune.
JIM LEHRER: Today's Supreme Court arguments over the attorney-client privilege and whether it exists after a client's death. At issue, a 1993 conversation then Deputy White House Counsel Vincent Foster had with a Washington attorney nine days before his suicide. Jan Crawford Greenberg covered today's court session for the Chicago Tribune. And welcome. The basic facts of the case, the lawyer was named James Hamilton. He interviewed Foster about what?
JAN CRAWFORD GREENBURG, Chicago Tribune: About a conversation or any information that Foster may have had concerning firings in the White House Travel Office. Now, this case really kind of came about in 1996, when Kenneth Starr began investigating those firings. Starr was interested in whether anyone in the White House, including the First Lady, might have committed perjury or obstructed justice in earlier investigations of the matter. Now, Vincent Foster would have been an important witness for Starr, because he was one of only a handful of people really who had talked to the First Lady about the matter. And he, you know, could have shed some light on the issue, presumably. That's why Starr is interested in Foster's conversation with his lawyer, Mr. Hamilton. And that's why he wants Mr. Hamilton's notes taken during that conversation just nine days before Vince Foster's death.
JIM LEHRER: Now, the arguments before the court today-first of all, what did-what did Starr's people argue? Who did the arguing for Starr, and what did he say?
JAN CRAWFORD GREENBURG: One of Starr's associates in the Office of Independent Counsel, Brett Cavanaugh, argued on behalf of Mr. Starr. And he urged the justices to essentially create an exception to what's one of the oldest principles in the law. I mean, it goes back to Elizabethan England. And that's the attorney-client privilege, the idea that a person's communications with his lawyer are to be kept confidential even after death. Mr. Cavanaugh argued that any erosion of the privilege in this case really wouldn't undermine the point of the privilege and that it important that prosecutors be able to get to this information, and that a client shouldn't kind of be able to dictate what goes on in grand jury proceedings, you know, from the grave.
JIM LEHRER: And the argument was that there was no other way to get this information?
JAN CRAWFORD GREENBURG: That's right, because the client, Vincent Foster, can't be asked directly about what he knew about the firings in the White House Travel Office.
JIM LEHRER: Now, Mr. Hamilton, did he argue on his own behalf?
JAN CRAWFORD GREENBURG: He did.
JIM LEHRER: What did he say?
JAN CRAWFORD GREENBURG: He argued first. He asked the justices very-in no uncertain terms not to recognize this exception to the attorney-client privilege. He said that it would be detrimental to the lawyer and client confidences in any number of cases, and that it's very important for a client to know that whatever he tells his lawyer will remain confidential. So he stressed the broader impact of this case, that it goes far beyond Starr's investigation, and it really would come into play in virtually every case, every time someone consults with a lawyer, no longer could they be assured that those communications, that seeking of legal advice, you know, would remain confidential in the event of their death.
JIM LEHRER: Now, how did the individual justices react to those arguments?
JAN CRAWFORD GREENBURG: It was a very lively argument. And it really reflected, I think, the difficult nature of the case. When Hamilton-Mr. Hamilton first began his argument, I thought it seemed almost obvious that he had five votes against him and that some of the more conservative justices really didn't see a problem with allowing this exception to the attorney-client privilege, but as the case progressed, and as the argument progressed, some of the justices almost seemed to kind of question some of the statements that they had made at the beginning of the argument. Justice Anthony Kennedy, for example, told Mr. Hamilton that he really didn't see a problem with this exception to the privilege and that it didn't really have seemed to have been an issue in earlier exceptions that courts have recognized; it didn't seem to have created a problem, that clients wouldn't feel they could confide in their lawyer, but later during the argument Kennedy kind of stepped back a little, almost as if he had had a change of heart and started reflecting on well, yes, this perhaps could present a problem and this is something, you know, I'm not so sure that we should really enter into here, and some of the other justices seemed a little torn as well. I would say only Justice Antonin Scalia seemed pretty clear that he believed this exception should be recognized and that Starr should get the note and Justice John Paul Stevens was on the other side. I would say he's clearly in Hamilton's camp.
JIM LEHRER: Rest his coin toss at this point-rest of 'em. Now, what is the status of the law in terms has there ever been-has this issue ever been raised and resolved before in any kind of definitive way?
JAN CRAWFORD GREENBURG: Not this specific issue, whether or not the attorney-client privilege can be waived or, you know, pulled apart after the death of a client in the federal criminal proceeding. And the justices seemed almost frustrated by the lack of authority on this very issue. I mean, they wanted-you could tell they wanted to be able to look at some kind of empirical evidence that would show yes, if we allow this exception, then, yes, clients aren't going to consult lawyers.
JIM LEHRER: Yes. Is the attorney-client privilege as generally-is that a matter of law, or is that a matter of custom?
JAN CRAWFORD GREENBURG: It's a judge-created privilege initially, but states also have passed statutes preserving the privilege as well. So I mean it applies in federal courts and state courts. And it's one of the oldest-like I said earlier-one of the oldest principles in our legal system.
JIM LEHRER: I know that the American Bar Association and other legal organizations file briefs on-this is considered a very big deal within the legal profession, is it not?
JAN CRAWFORD GREENBURG: Absolutely. It certainly is, and several groups have weighed in on it, and there were quite a few legal heavyweights in the courtroom today to listen to these arguments. I mean, they just feel it's critical that a lawyer can tell his client when the client comes in the door, the lawyer can say to him, look, what you tell me will never be disclosed unless I give you-I mean, unless you give me permission to disclose it. They say without being able to tell the client that, that the client's never going to really tell them the whole story. But I think one thing about this case is that it's been overstated to some degree. I mean, there are exceptions to the attorney-client privilege, and there always have been. I mean, the privilege has never been absolute. For example, a lawyer can disclose communications he has with a client if he learns the client is going to be committing a crime or fraud. There have been cases where a lawyer could disclose communications with the client when a will is at issue and will contests. And there are exceptions in other states. For example, in California, the privilege pretty much disappears once the estate is closed. So Starr would say, look, we have all these exceptions and the attorney-client privilege still works quite well and these are just extreme arguments that will not come to bear.
JIM LEHRER: And I need the information in order to get to the bottom-
JAN CRAWFORD GREENBURG: It's very important to my criminal investigation.
JIM LEHRER: When can we expect a decision?
JAN CRAWFORD GREENBURG: Probably by the end of June. The court agreed to consider this issue much more quickly than it normally would so. That's why those very unusual arguments today in June-normally they don't hear arguments after April-so because it's kind of on this fast track, we should get an opinion, I would say, within a month.
JIM LEHRER: Okay. Jan, thank you very much.
JAN CRAWFORD GREENBURG: Thank you.