Public Or Private?
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JIM LEHRER: Now, the perspectives of two former White House counsels. Lloyd Cutler had the job in the Carter administration and in the first Clinton term. C. Boyden Gray had the job in the Bush administration. Mr. Gray, who has the law on this–on his side in this, the President or Mr. Starr?
C. BOYDEN GRAY, Former Bush White House Counsel: Well, the court of appeals says that the–that the independent counsel has the law on his side. The Supreme Court may have to decide it. They don’t have to take the case, but they might. And I wouldn’t want to hazard a guess as to which way they would come out. All I can say is that we always had the understanding when I was in the White House that we–we would not be protected by attorney-client privilege.
JIM LEHRER: So you agree with the lower court ruling?
C. BOYDEN GRAY: Well, I’m not sure I agree with it. This is what the law is as we were brought up, as it were, in the White House. That doesn’t necessarily mean the Supreme Court won’t rule the other way. This is–this is the way we were taught. And I am sympathetic to the White House counsel trying to maintain control, especially in the highly charged political issue. But the President does have private counsel, and they have should have been alone in taking these debriefing–the debriefing notes.
JIM LEHRER: How do you feel about it, Mr. Cutler?
LLOYD CUTLER, Former Clinton White House Counsel: Well, like Boyden, I have guessed wrong too many times in the past to predict how this case is going to turn out, but I think the White House position is a very respectable and principled position. It’s also one on which the four lower court judges that have passed on the case so far have split two to two. Back when Boyden was, I think, President Bush’s–Vice President Bush’s counsel, the Republican Justice Department, the Reagan Justice Department upheld the existence of the lawyer-client privilege between government lawyers and government officials.
JIM LEHRER: Well, for those of us who are not lawyers explain what–what we–neither of you were present when these–these meetings that involved Mrs. Clinton and these lawyers went down, but are we to suggest they were in a room and there were people who worked like the two of you, worked for the government of the United States as White House counsel, and who were also lawyers who worked privately for the Clintons, is that right, is that how the two of you understand it?
C. BOYDEN GRAY: David Kendall, their private attorney, was there, along with a White House lawyer or two maybe.
JIM LEHRER: Now, if there had been no White House lawyers there, then this–there would be no dispute, from your point of view, is that right?
C. BOYDEN GRAY: Correct. There would be no dispute.
JIM LEHRER: Do you agree?
LLOYD CUTLER: Mr. Kendall’s notes were not subpoenaed by the independent counsel, that’s quite true.
JIM LEHRER: They were not subpoenaed. And so there would have been no dispute at all if that had been the case?
LLOYD CUTLER: If that had been the case, but if that had been the case, the White House lawyers charged with the duty of protecting the White House and advising the White House how to respond to a subpoena. Remember, this subpoena is addressed to the White House, not to Mrs. Clinton. It had to be answered by the White House counsel. They need to be able to talk to the officials in the White House. Mrs. Clinton, whom the courts have already held to be a quasi-government official in the case involving the health plan program, because Congress actually passed statutes appropriating money from Mrs. Clinton’s office. They need to be able to talk to them, to advise the President and others concerned on what to do and how to respond to the subpoena.
JIM LEHRER: What about that point, Mr. Gray, that this–we’re talking about the First Lady of the United States, not a personal matter at all, the subpoena was to the White House?
C. BOYDEN GRAY: Well, one point I think should be made is that the White House has waived whatever privilege there might be, has turned over similar kinds of notes in connection with the White House staff. They seemed to have drawn the line with somebody who doesn’t, in fact, work in the White House. Leaving that to one side, I think Mrs. Clinton is entitled to the same thing he’s entitled to. I don’t think the spousal thing, there’s a pretty close relationship. But the fact of the matter is that she should have been well enough served by David Kendall taking the notes and then informing the White House counsel of the things that he thought the White House counsel should know in order to respond.
LLOYD CUTLER: Total abdication of what White House counsel are supposed to do in advising the President and in trying, themselves, to comply with the law. Everybody else has a lawyer-client privilege. Every lawyer who takes notes and writes down his impressions in preparation for litigation, including congressional investigations, has a so-called work product privilege.
JIM LEHRER: Well, let’s say it wasn’t Hillary Clinton. Let’s say it was the White House chief of staff in a similar situation. The White House counsel is there; also his or her personal lawyers. Does that–would it be the same–the same rules apply?
C. BOYDEN GRAY: I think the same rules would apply. And the only point I was trying to make is notes taken in connection with those individuals–I’m not sure about the chief of staff–but notes taken of senior White House people have been turned over already.
LLOYD CUTLER: It’s also important to remember, Jim, that if the notes have to be turned over, then the lawyers can be called on to testify about these conversations.
JIM LEHRER: Explain that.
LLOYD CUTLER: And that would be a total destruction of the lawyer-client privilege.
JIM LEHRER: You mean if–now, what we’re talking about here is–they’re talking, okay, they’re in this room. The people are in this room, and somebody writing down what’s said, what Mrs. Clinton said, what the White House counsel’s lawyers said, what Mr. Kendall, the private lawyer, said. Now, whose notes is it they want?
C. BOYDEN GRAY: Well, we had the same problem in Iran-Contra. There were lots of White House staff and related people who were being investigated by the grand jury, and it would have been wonderful had we been able or felt we could have debriefed every single individual involved because it would have given us tremendous knowledge about how to defend the interests of the White House, but we felt that was not proper. We did the best we could to find out from the lawyers representing their private clients.
JIM LEHRER: So you did not sit on these comparable situations?
C. BOYDEN GRAY: No. We tried to pick up what we could, but we didn’t take notes, and we would not have, you know, felt that we could–
LLOYD CUTLER: But Boyden, you, yourself, declined to respond to the Iran-Contra counsel’s questions about your conversations with President Bush.
C. BOYDEN GRAY: If they had taken it to court, I would not have–
LLOYD CUTLER: That may well be, but you, in effect, exerted the privilege and it was not challenged.
C. BOYDEN GRAY: It was not challenged, that’s correct. And I knew when I did it that I was on very uncertain ground.
LLOYD CUTLER: Could I raise a somewhat different point, Jim, rather than the–the abstruse legal merits of this case, which I would say are close and it hasn’t been decided before, but are very substantial.
JIM LEHRER: And they have not been decided before. That was the question I wanted to ask. Either one of you all have any really good precedents on your side on this one?
LLOYD CUTLER: There’s no cases–
JIM LEHRER: No cases. This has never–the Nixon tapes case–
LLOYD CUTLER: In the Nixon tapes case, where the court held that where executive privilege was asserted, the President’s right to withhold documents that he needs–
JIM LEHRER: Right, but that’s different–
LLOYD CUTLER: –it had to be a balance–
JIM LEHRER: Okay.
LLOYD CUTLER: –in a case that involved an actual criminal trial, but there’s a note, a reference in that case to the duty to comply with the grand jury’s subpoena or court subpoena being–even on a criminal case–being subject to the ancient common-law privileges, including lawyer-client.
JIM LEHRER: I think that need to–just for people who were born after Watergate, what we’re talking about here with tapes, the White House tapes and the President maintained on executive privilege grounds that he didn’t want to turn the tapes over; he was ordered to do so by an eight to nothing vote of the Supreme Court, but I interrupted you, Mr. Cutler.
LLOYD CUTLER: What I was about to say is if these notes have to be turned over, and if lawyers have to testify about what they–what government officials have said to them, if government lawyers have to testify, we’re going to see the biggest epidemic of writer’s cramp, writer’s block among government officials and government lawyers that you have ever seen. People are simply going to stop taking notes.
JIM LEHRER: They’re just going to sit there like that.
LLOYD CUTLER: Or they’re going to destroy them the day after they’re used.
C. BOYDEN GRAY: That’s already happened. I mean, I never took notes.
LLOYD CUTLER: Boyden has said, “I never took notes.” You actually said, “I wasn’t that dumb.”
JIM LEHRER: What kind of world is that?
LLOYD CUTLER: What’s it going to do for journalists, for biographers, for historians, if there are going to be no notes because they’re either never taken, or they’re destroyed as soon as their immediate purpose has been served?
JIM LEHRER: Everything is going to be like a traffic accident, is that what–
LLOYD CUTLER: But, Jim, what if your reporters couldn’t have notes, couldn’t take notes.
JIM LEHRER: Sure. Mr. Gray.
C. BOYDEN GRAY: We’re forgetting the political context of all this. The–whatever privilege may exist–and the Supreme Court will decide this–has been waged politically by so many presidents so often on so many occasions that I don’t know what principle is actually going to be vindicated here because it can be waived again in a political–under political pressure. And I think that cat is out of the bag, and I don’t know how–to mix another metaphor–you put it back in again; how you build–rebuild Humpty Dumpty. It’s already happened. It happened beginning in Watergate and Iran-Contra, Iraq-gate, all the way through, and this–
JIM LEHRER: In other words, the political–when you say political, you mean there’s a public controversy of some kind that forget what attorney–what–
C. BOYDEN GRAY: Forget the legal.
JIM LEHRER: –the legalities–the document, whatever it is, notes, whatever get released, and–
C. BOYDEN GRAY: President Bush’s most intimate diaries out in public; President Reagan’s most intimate diaries out in public.
LLOYD CUTLER: You can’t get Packwood’s diaries.
C. BOYDEN GRAY: You can’t get any more central to the President’s ability to carry on, if you get to his innermost thoughts, and that’s all open season politically, not legally but politically.
JIM LEHRER: Do you agree with Mr. Cutler, Mr. Gray, that if the Supreme Court sides with the lower court and forces the President to–or the White House to give Kenneth Starr the notes from these Hillary Clinton meetings, that some whole new ground has been broken?
C. BOYDEN GRAY: No. I don’t believe whole new ground has been broken because we were–we were never led to believe that this ground existed when we were in the White House by the Department of Justice. They were very explicit. We find it sometimes hard to believe, but they were very explicit about it.
JIM LEHRER: So it’s not an earthshaking thing if they do that?
C. BOYDEN GRAY: No. As I say, politically–
JIM LEHRER: It doesn’t matter.
C. BOYDEN GRAY: It doesn’t matter. Politically, it didn’t matter.
LLOYD CUTLER: Well, I don’t agree with that. As I said earlier, the Reagan lawyers, the Reagan Department of Justice lawyers said there is a lawyer-client privilege between government officials and government lawyers. The American Law Institute, which issues these restatements of the common law, and these are common law privileges, says that such a privilege exists. The Freedom of Information Act protects from disclosure to the ordinary citizen who wants to see what the government has in its files anything covered by the lawyer-client privilege between government lawyers and government officials. So the important thing though, Jim, is–
JIM LEHRER: Is the notes.
LLOYD CUTLER: –everything is going to come to a stop, and we’re going to lose this vital record that Presidents need not only to carry out their own bus iness–they need to seek written advice, as well as oral advice–the need of their lawyers to query people to record discussions, to write down their impressions. All of that is going to come to a halt.
JIM LEHRER: Finally, this thing should be resolved quickly, should it not, in other words, the Supreme Court’s either going to take it or not take it, and probably move on it very quickly, right, on an expedited schedule?
LLOYD CUTLER: Probably not till the fall.
JIM LEHRER: When you get–
LLOYD CUTLER: The government has not asked to hear it this summer. I mean, the White House lawyers have not asked. This is an issue of will the government grant certiorari, as it’s called, and schedule it for say an early fall argument.
JIM LEHRER: But that decision, whether or not they’ve scheduled it for fall, will begin very quickly.
LLOYD CUTLER: Will be made very quickly.
JIM LEHRER: All right. Gentlemen, thank you both very much.