Judges Overturn Ruling on Foster: Attorney's Notes Get New Scrutiny

Article excerpt

A federal court yesterday brought Whitewater prosecutors closer to a possible review of notes of conversations between White House Deputy Counsel Vincent W. Foster Jr. and his attorney about the White House travel office firings.

A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia, in a 2-1 decision, said a lower court ruling barring independent counsel Kenneth W. Starr from notes of attorney James Hamilton was too broadly defined and ordered the court to determine whether they should be surrendered.

The panel said the review should be aimed at finding out whether statements Mr. Foster made during the conversation "bear on a significant aspect of the crimes at issue, and an aspect as to which there is a scarcity of reliable evidence" from other sources.

The notes of the 1993 conversation were withheld from prosecutors when a federal judge granted a motion by Mr. Hamilton to quash the subpoena. Mr. Hamilton cited attorney-client privilege, saying conversations he had with Mr. Foster - his client - were confidential.

Mr. Starr, whose mandate in the Whitewater probe was expanded to include a look into the firing of seven White House travel office employees in 1993 and the suspected cover-up concerning involvement of presidential aides in that decision, had sought the notes as a part of his expanded inquiry.

The conversation took place in the summer of 1993. The independent counsel argued in district court that the attorney-client privilege did not survive Mr. Foster's death on July 20, 1993, which police have ruled a suicide.

Mr. Hamilton was on vacation yesterday and unavailable for comment.

The subpoena was quashed by U.S. District Judge Garrett Penn, who said it violated an attorney's work-product privilege protecting a lawyer's thoughts and opinions in a case. The review will be conducted by U.S. District Judge Norma Holloway Johnson, who supervises grand jury matters since her appointment as chief judge.

Jed L. Babbin, a lawyer at the Washington firm that successfully defended Billy R. Dale, the ousted head of the White House travel office, said Mr. Foster must have had concerns about the affair and his involvement in it if he hired a private lawyer.

"If it rose to the level that Foster believed he had to consult an attorney in the personal sense as opposed to a government attorney, then he obviously was concerned about some wrongdoing," Mr. Babbin said. "People don't hire lawyers at great expense unless they think there is something they are worried about. …