High Court Rejects Starr's Bid for Foster Attorney's Notes

By Seper, Jerry | The Washington Times (Washington, DC), June 26, 1998 | Go to article overview

High Court Rejects Starr's Bid for Foster Attorney's Notes


Seper, Jerry, The Washington Times (Washington, DC)


The Supreme Court yesterday denied independent counsel Kenneth W. Starr access to notes involving the late Vincent W. Foster Jr. in the "Travelgate" scandal, while a federal judge in Arkansas let convicted Whitewater felon Susan McDougal out of prison.

At the same time, Linda Tripp, the woman who prompted the Monica Lewinsky probe, was subpoenaed to begin her much-anticipated testimony Tuesday before a grand jury. A confidant of Mrs. Tripp said her appearance could bring pressure on Miss Lewinsky to cooperate in Mr. Starr's investigation.

Mr. Starr, in a statement, said he was disappointed the court ruled 6-3 that notes by Mr. Foster's attorney, James Hamilton, during a July 1993 conversation they had concerning a takeover of the White House travel office by presidential aides were protected by attorney-client privilege, but said his Whitewater inquiry would continue.

"The issue has obviously proved to be of considerable difficulty, as the divided opinions of the Supreme Court and the Court of Appeals reveal," he said. "In all events, we continue to pursue our investigations as thoroughly and expeditiously as possible."

The high court's decision overturned a 2-1 ruling in August by a three-judge panel of the U.S. Circuit Court of Appeals in Washington reversing a lower court order barring Mr. Starr from the notes. The appeals court refused to reconsider the ruling in November, rejecting arguments by Mr. Hamilton that a rehearing was warranted.

"It has been generally, if not universally, accepted, for well over a century, that the attorney-client privilege survives the death of the client in a case such as this," Chief Justice William H. Rehnquist wrote in an 11-page majority opinion. "Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel."

A White House official with President Clinton in China called the ruling "an important validation of the vital issue of attorney-client privilege."

Chief Justice Rehnquist was joined by Justices John Paul Stevens, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Dissenting were Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas.

Writing for the minority, Justice O'Connor said that while attorney-client privilege ordinarily survives the death of the client, she did not agree it "inevitably precludes disclosure of a deceased client's communications in criminal proceedings."

"A criminal defendant's right to exculpatory evidence or a compelling law enforcement need for information may, where the testimony is not available from other sources, override a client's posthumous interest in confidentiality," she said.

Mr. Starr sought access to notes Mr. …

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