The Justice Department has found the right middle ground between President Bill Clinton and independent counsel Kenneth W. Starr in the tough White House notes case.
The president goes too far in saying the lawyer-client privilege claimed by the White House is absolute and always prevails over a grand jury subpoena, as the Justice Department said in a brief filed with the Supreme Court. But the independent counsel is also wrong in saying that no privilege exists.
The case involves two sessions between Hillary Rodham Clinton and her lawyers. The first was July 11, 1995, when she discussed her actions following the death of Vincent Foster. The second, Jan. 26, 1996, concerned the discovery in the White House of missing billing records from the Rose Law Firm. The federal appeals court in St. Louis ruled this spring that the White House had to turn over notes taken by White House lawyers. But that opinion by Judge Pasco Bowman, a Reagan appointee, was far from persuasive. Colleagues have described Judge Bowman as just as conservative as Robert Bork, but not as sharp. In his decision on the notes case, he flees from most things judges usually cling to - precedents, the literal wording of rules, Justice Department opinions. The judge concluded that the White House didn't enjoy the same kind of attorney-client privilege as a corporation. That's because a corporation can be prosecuted; the White House can't. …