President Clinton's lawyers have asserted that notes of a meeting held in the law offices of Williams & Connolly regarding "Whitewater matters" in November 1993 are protected by attorney-client privilege.

Here is the letter the law firm has sent to the Senate Committee investigating Whitewater.

SUBMISSION OF WILLIAMS & CONNOLLY 
TO THE SPECIAL SENATE COMMITTEE REGARDING 
WHITEWATER AND RELATED MATTERS 
 
I. INTRODUCTION. 
 
On December 8, 1995, the Special Committee to Investigate 
Whitewater Development Corporation and Related Matters 
served a subpoena on William H. Kennedy, III, former 
Assistant White House Counsel, for documents in his 
possession relating to a meeting he attended on November 5, 
1993, at the law offices of Williams & Connolly, personal 
counsel to the President and Mrs. Clinton on so-called 
"Whitewater" matters. Mr. Kennedy has respectfully declined 
to comply with this subpoena on privilege grounds. In the 
transmittal letter accompanying the subpoena, the Chairman 
invited Mr. Kennedy "to submit . . . a legal memorandum 
which sets forth the basis for your refusal to comply with 
the subpoena." Because Mr. Kennedy's response to the 
subpoena is pursuant to the instructions of this law firm 
and of } the White House Counsel's Office, both entities 
are submitting separate memoranda stating the reasons why 
privilege applies to the documents sought by this subpoena. 
 
Two points cannot be overemphasized: first, the issue here 
is not the subpoenaed notes. The issue is the 
confidentially of the President and Mrs. Clinton's 
relationship with their personal lawyer. If they make the 
notes public, partisan investigators will next claim that 
they have waived the confidentiality of that entire 
relationship. That risk alone creates the need to maintain 
the confidentiality of the notes. Second, a President must 
be able to receive confidential legal advice about any 
personal matter including personal matters that might 
affect his public duties. The President and the Presidency, 
although distinct conceptually, are at times inseparable 
practically. On matters of common interest, the lawyers for 
each -- White House counsel and personal counsel  -- must 
be able to talk frankly in confidence, and delineate areas 
of responsibility, just as the President must be able to 
talk in confidence to both. Without such exchanges, neither 
lawyer could obtain the full picture necessary to offer 
sound advice, and neither could be effective in his or her 
role. The  President could not receive the legal advice he 
needs to conduct  his public and personal business. 
Moreover, the last decade has, for better or for worse, 
been a time when public policy  differences have been 
improperly referred to the criminal process, rather than 
resolved by the give and take of political debate, when 
motives are impugned and the specter of wrongdoing is 
raised at every turn, and when bareknuckle tactics rather 
than civility are the order of the day./1/ Today, when 
politics is too often practiced as a blood sport, a 
President, like any other elected official and like any 
citizen, deserves the full right to legal counsel, for he 
may be beset by overzealous or partisan investigators whose 
motive is not simply to uncover the truth but rather to do 
him political damage. 
 
These simple points alone compel the decision to resist the 
Special Committee's subpoena. 
 
        *      *       * 
 
For the reasons set forth in this memorandum, the November 
5, 1993, meeting is plainly protected by both the 
attorney-client privilege and the attorney work-product 
doctrine This was a meeting of present and past personal 
counsel for the President and Mrs. Clinton and of attorneys 
doing legal work in the White House. The purpose of the 
meeting was to brief new personal counsel and members of 
the White House Counsel's Office on "Whitewater" matters 
and to agree upon an appropriate division of responsibility 
for Whitewater" legal duties between personal and White 
House counsel. Indeed, as the following legal analysis 
demonstrates, the meeting is so clearly protected in so 
many different ways that the Special Committee's attempt to 
invade the privileged relationship is puzzling, 
particularly in view of the numerous permissible ways in 
which the Special Committee may gather relevant information 
concerning the meeting, which the Special Committee's 
counsel have not even attempted to date. 
 
The President and Mrs. Clinton have afforded comprehensive 
and unprecedented cooperation in every investigation into 
"Whitewater" matters. They have voluntarily produced tens 
of thousands of pages of documents to this Committee, the 
RTC, and the Independent Counsel. They have each testified 
three times under oath for the Independent Counsel, they 
have answered voluminous interrogatories for the RTC, and 
Mrs. Clinton has provided information under oath to both 
the FDIC and this Committee. 
 
For this Committee, however, it appears that no degree of 
cooperation is sufficient. As the hearings drag beyond 
their thirtieth day and face low ratings and flagging 
public interest, the Committee majority is plainly 
attempting to manufacture a controversy so that it can 
allege (finally) a failure of cooperation by the Clintons. 
It appears that the majority has made a conscious and 
concerted decision to spark this battle over the exercise 
of a privilege which, however well established as a matter 
of law, will provide a specious occasion to cry "Coverup!" 
Whatever partisan and political advantage there may be to 
this grandstanding, as a matter of law this unprecedented 
attempt is wholly devoid of merit. 
 
II. BACKGROUND TO THE NOVEMBER 5, 1993 MEETING. 
 
Starting on October 31, 1993, and in the days immediately 
following, there was a torrent of press discussion of the 
many matters now known collectively as "Whitewater." A 
review of these press accounts establishes that, by the 
date of the meeting, there had been unprecedented public 
disclosure of the on-going federal investigations. It was 
clear by November 5 that there would be an appropriate role 
for both personal and White House counsel. 
 
On October 31, 1993, The Washington Post reported that 4 
the Resolution Trust Corporation had 'asked federal 
prosecutors in Little Rock to open a criminal investigation 
into whether a failed Arkansas savings and loan [Madison 
Guaranty] used depositors' funds during the mid-80s to 
benefit local politicians, including a reelection campaign 
of then-governor Bill Clinton." Susan Schmidt, U.S. Is 
Asked to Probe Failed Arkansas S&L, The Washington Post, at 
Al. Citing "government sources familiar with the probe," 
the Post article presented a detailed picture of the RTC 
referrals. Id. 2/ It reported that the RTC had referred 
About 10 matters arising from transactions at" Madison to 
United States Attorney Paula Casey approximately three 
weeks earlier, and that the referrals included "questions 
about whether a series of checks written on Madison 
accounts ended up in Clinton's campaign fund." Id. 3/ 
 
The Washington Post story was only the first of a series of 
articles in the Post and other newspapers disclosing in  an 
extraordinary way reams of details about on-going federal 
investigative efforts. On November 1, 1993, The Wall Street 
Journal confirmed the existence of an investigation into 
Madison  Guaranty and publicized a second parallel federal 
investigation by federal prosecutors and the Small Business 
Administration regarding a former judge, David Hale, who 
was involved in the collapse of Capital Management 
Services, Inc., an SBA-funded small business investment 
company (SBIC). Bruce Ingersoll and Paul Barrett, U.S. 
Investigating S&L Chiefs '85 Check to Clinton. SBA-Backed 
Loan to Friend, The Wall Street Journal, at Ad. The Journal 
reported an investigation of alleged defrauding of the SBA 
by Hale's company, which it said had lent money to a firm 
owned by Mr. McDougal's wife, Susan. The article also 
stated that Mr. Hale had attempted to "stave off his 
indictments by providing investigators with information 
about Madison Guaranty's Possible misuse of funds for 
political purposes." Id. News of the federal investigations 
also carried by newspapers abroad. Martin Walker, Clintons' 
Associate to be Investigated, The Guardian, at 11. 
 
On November 2, 1993, both The Washington Post and The New 
York Times carried stories providing additional facts about 
the federal investigations. The Post reported that the FBI 
had raided the offices of Mr. Hales firm the previous 
summer and had "seized documents that included records of 
a $300,000 loan to a public relations company headed by 
Susan McDougal, a partner in Whitewater." Michael Isikoff 
and Howard Schneider, Clintons' Former Real Estate Firm 
Probed, The Washington Post, at A1. The New York Times 
described an alleged close business and professional 
relationship between then-Governor Clinton and Mr. McDougal 
and reported that RTC investigators were interested in a 
potential link between campaign contributions made by 
Madison Guaranty to then-Governor Clinton and efforts by 
Madison to get state bank regulators to approve a stock 
plan. Jeff Gerth and Stephen Engelberg, U.S. Investigating 
Clinton's Links to Arkansas S.& L., The New York Times, at 
A20. 4/ 
 
The stories continued the next day. The Washington Post ran 
an article on November 3, 1993, detailing what it described 
as a possible conflict of interest in the Rose Law Firm's 
representation of the FDIC, which had taken over Madison 
Guaranty, an institution which, the Post reported, the law 
firm had previously represented in 1985 when the S & L 
sought state regulatory approval for a plan to raise new 
capital. The representation was in a lawsuit against the 
S&L's former accounting firm. Susan Schmidt, Regulators Say 
They Were Unaware of Clinton Law Firm's S&L Ties, The 
Washington Post, at A4./5 , The Arkansas Democrat Gazette 
reported that a July 1993 FBI raid on Mr. Hale's office 
disclosed documents detailing a $300,000 loan to Susan 
McDougal, some of the proceeds of which "were used to 
finance a large purchase of rural property from the 
International Paper Co. by Whitewater in October 1986." 
Noel Oman, "Old Story " Clinton Says of Links to McDougal, 
Arkansas Democrat Gazette, at 11A. The article additionally 
recounted that Hale was indicted that September on charges 
that he and two colleagues "defrauded the SEA by illegally 
funneling $800,000 in and out of Capital Management to 
secure a $900,000 SBA loan." Richard Keil, Clintons Clear 
of S&L Inquiry White House Insists, Arkansas Democrat 
Gazette, at 13A. 
 
Additional stories were published November 4, 1993, the day 
before the meeting among counsel at Williams & Connolly. 
The Washington Post reported in detail on federal 
investigations into Arkansas Governor Jim Guy Tucker's 
relationships with Madison arc Capital Management Services. 
Howard Schneider, Governor Tucker's Finances Become Probe 
Focus, The Washington Post, at A3. The Washington Times 
reported that the federal inquiry into Madison a loans 
included an inquiry into an alleged "$35,000 loan to Mr. 
Clinton to help settle 1984 campaign debts." Jerry Seper, 
What Were the Clinton Stakes in Land Scheme?, The 
Washington Times, at ' Al. It further stated that federal 
investigators were looking into what it described as "$2000 
a month in legal fees from Mr. J McDougal [that Mrs. 
Clinton received: to represent Madison Guaranty." Id. at 
A20.6/ 
 
Finally, on November 5, 1993, the day of the meeting, The 
Washington Times published another lengthy and detailed 
account of the "federal fraud investigation" of Mr. 
McDougal. Jerry Seper, Probe of S&L Chief Touches on 
Hillary's Legal Fee, The Washington Times, at Al. The 
article stated that investigators were looking into a 
$30,000 payment made to Mrs. Clinton for legal work over a 
15-month period and included the allegation that Mr. 
Clinton and Mr. McDougal Impersonally agreed to the 
payments" and that Mr. Clinton Unpicked up the checks." Id. 
The article further claimed that "the probe also is aimed 
at determining if the monthly retainer was paid to Mrs. 
Clinton through a secret bank account." Id.2 
 
In short, by the day of the meeting at Williams & Connolly, 
the details of the RTC referral and investigations by the 
U.S. Attorney and the SBA had been extensively publicized, 
and many of the allegations, facts, and issues surrounding 
the broadly defined White water matter were well known. The 
torrent of unusually detailed reporting about the RTC 
referral and the federal investigations in the week leading 
up to the November 5th meetings was vastly more specific 
than any information conveyed by the RTC to the Treasury 
Department and the White House in the September and October 
1993 "Treasury/White House contacts" meetings, which the 
Senate Banking Committee explored in the summer of 1994. 
See Appendix A. Given the thorough airing of the RTC 
referral and the federal investigations in the press 
summarized above, whatever limited confidential information 
concerning the RTC referral may have been given to Treasury 
or the White House had been published in the press by the 
time of the Williams & Connolly meeting 
 
III. THE MEETING AND WHO ATTENDED IT. 
 
The November 5 meeting occurred after the avalanche of 
publicity described in the previous section, and it had a 
number of purposes: to provide new private counsel with a 
briefing about "Whitewater issues from counsel for the 
Clintons who had been involved with those matters, to brief 
the White House Counsel's office and new personal counsel 
on the knowledge of James M. Lyons, personal attorney for 
the Clintons who had conducted an investigation of 
Whitewater Development Company in the 1992 Presidential 
Campaign, to analyze the pending issues, and, finally, to 
discuss a division of labor between personal and White 
House counsel for handling future Whitewater issues. All of 
these purposes served the larger purpose of providing legal 
advice to the President on the conduct of his public and 
private business. 
 
The meeting was set up by David E. Kendall with Bernard 
Nussbaum, White House Counsel. It was held at Kendall's law 
firm, lasted more than two hours, and was limited to pass 
and present personal lawyers for the President and Mrs. 
Clinton and lawyers in the White House Counsel's Office 
doing legal work on the emerging Whitewater matters. 
Communications at the meeting were held in strict 
confidence. Seven lawyers attended. Mr. Kendall, a partner 
at the Washington, D.C., law firm of Williams & Connolly, 
had been retained to represent the Clintons with respect to 
Whitewater matters the day before, on November 4, 1993. 
Stephen Engstrom, a partner at the Little Rock law firm of 
Wilson, Engstrom, Corum, Dudley & Coulter, had traveled to 
Washington, D.C., to attend the meeting. He had been 
retained to serve as local counsel for the Clintons a few 
days prior to the meeting. 9/ 
 
Also present were three attorneys from the White House 
Counsel's Office: White House Counsel Bernard Nussbaum, 
Associate White House Counsel William H. Kennedy, III, and 
Associate White House Counsel Neil Eggleston. Mr. Kennedy 
had also represented the Clintons in the 1990-1991 period, 
when he undertook an investigation of the status of the 
Clintons' investment in Whitewater Development Company. 
This representation had continued in 1992, when Mr. Kennedy 
had advised the Clinton Campaign about the Whitewater 
investment. He then represented the President in his 
official capacity when he joined the White House Counsel's 
Office in 1993. 
 
James M. Lyons, Esq., a partner in the Denver, Colorado, 
law firm of Rothgerber, Appel, Powers & Johnson, had also 
traveled to Washington, D.C., to attend the meeting. During 
the 1992 Presidential campaign, he had served as personal 
counsel to the Clintons with respect to a number of 
different matters, and had undertaken to do an extensive 
review of the Whitewater investment, with the Denver 
forensic accounting firm of Batten, McCarthy & Associates, 
Inc. Mr. Lyons continued to represent the Clintons 
personally in November 1993. 
 
Finally, Bruce Lindsey, Esq., a former law partner of 
President Clinton's, a former counsel both to then-Governor 
Clinton personally and his 1990 and 1992 political 
campaigns, and White House personnel director in November 
1993, attended the meeting. Although not part of the White 
House Counsel's Office, be Mr. Lindsey also had done legal 
work for the Office of the President analyzing various 
"Whitewater" issues as they emerged in the fall of 1993 and 
working through counsel in Arkansas to research state law 
legal issues. He continued in that role after the November 
5 meeting. 
 
Because the purpose of the meeting was to learn the facts, 
develop legal analyses, and apportion responsibilities in 
order to enable both personal and White House counsel to 
provide competent, appropriate, and effective legal advice 
and services, the meeting was plainly privileged. 
 
IV. THE DISCUSSION THAT TOOK PLACE AMONG THE ATTORNEYS 
PRESENT AT TEE NOVEMBER 5, 1993 MEETING, AND ALL 
DOCUMENTS 
REFLECTING THAT DISCUSSION, ARE PROTECTED BY THE 
ATTORNEY 
CLIENT PRIVILEGE, THE COMMON-INTEREST PRIVILEGE, AND THE 
WORK-PRODUCT DOCTRINE. 
 
A. The Meeting Was Protected by the Attorney-Client 
Privilege . 
 
The attorney-client privilege, which originated in Roman 
and canon law, "is the oldest of the privileges for 
confidential communications known to the common law." 
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) 
(citing 8 J. Wigmore, Evidence   2290 (McNaughton rev. 
1961)). The purpose of the privilege is "to encourage full 
and frank communications between attorneys and their 
clients," and Bathe privilege exists to protect not only 
the giving of professional advice to those who can act on 
it but also the giving of information to the lawyer to 
enable him to give sound and informed advice." Upjohn, 449 
U.S. at 389-91. 10/ 
 
The November 5 meeting at Williams & Connolly falls 
squarely within this privilege. Seven lawyers, all personal 
counsel for President and Mrs. Clinton or lawyers in the 
White House, attended the meeting. Each was present in his 
capacity as a lawyer, and the President and Mrs. Clinton 
understood themselves to have a privileged relationship 
with each lawyer. The meeting was held for the purpose of 
sharing information as necessary and appropriate to provide 
legal advice, analyzing the information, and dividing 
responsibility among the lawyers for handling 
Whitewater-related matters on behalf of the Clintons. This 
lawyers' meeting was held with the expectation of 
confidentiality, and it is privileged. 
 
1. The Attorney-Client Privilege. 
 
Certain basic and indisputable rules about the 
attorney-client privilege establish this point. First, the 
attorney-client privilege@ protects confidential 
communications between an attorney and his or her client 
"made for the purpose of furnishing or obtaining 
professional legal advice and assistance." In re LTV 
Securities Litigation, 89 F.R.D. 595, 600 (N.D. Tex. 1981). 
The privilege applies in both directions: to communications 
from the client to the attorney, and to communications from 
the attorney to the client. Schwimmer v. United States, 232 
F.2d 855 (8th Cir.), cert. denied, 352 U.S. 833 (1956); 
Green v. IRS, 556 F. Supp. 79, 85 (N.D. Ind. 1982), afford 
without op., 734 F.2d 18 (7th Cir. 1984). It applies with 
equal force to conversations and correspondence among a 
client's attorneys, whether or not the client is present 
during the conversation or receives a copy of the 
correspondence. 11/ 
 
Second, what is protected by the privilege is the 
communications themselves within the confidential setting. 
"The protection of the privilege extends only to 
communications and no to facts." Upjohn, 449 U.S. at 395 
(quoting Philadelphia v. Westinghouse Electric Corp., 205 
F. Supp. 830, 831 (E.D. Pa. 1962)), and investigators are 
free to question individuals who communicate with counsel 
about unprivileged facts known to them. But arguments that 
the information may more conveniently be obtained from the 
privileged communication are unavailing because "such 
considerations of convenience do not overcome the policies 
served by the attorney-client privilege." Id. at 396. 
 
For this reason, even if the information discussed is in 
the public domain, the fact of communicating about it with 
or among counsel is privileged. In Lehman v. Superior 
Court, 81 Cal. App. 3d 90 (1978), for example, the court 
explained, 
 
"if the client discloses certain facts to a third person 
and subsequently advises his lawyer of those same facts in 
the form of a confidential communication, there has been no 
waiver since, obviously, the client has not disclosed to 
the third person the confidential communication to the 
attorney, l.e., had not disclosed that certain information 
had been communicated to the attorney." 
 
Id. at 97. And by necessity, the attorney-client privilege 
extends as well to written materials reflecting the 
substance of an attorney-client communication. 12/ 
 
Third, the attorney-client privilege also covers 
communications between agents of a client and the client's 
attorney, again, as long as the communication was intended 
to be confidential. "[I]f the purpose of the communication 
is to facilitate the rendering of legal services by the 
attorney, the privilege may also cover communications 
between the client and his attorneys representative, 
between the client's representative and the attorney, and 
between the attorney and his representative.' Golden Trade 
v. Lee Ansarel Co., 143 F.R.D. 514, 518 (S.D.N.Y. 1992). 
13/ Courts define the term "agent" broadly to encompass a 
range of individuals, from expert consultants to relatives 
to insurance agents, whose presence is necessary to the 
purpose of the meeting and to the rendering of advice. See, 
e.g:, Kevlick v. Goldstein, 724 F.2d 844, 849 (lst Cir. 
1984) (client's father); United States v. Biros, 459 F.2d 
639, 643 (1st Cir.) (cllent's father), cert. denied sub 
nom., Raimondi v. United States, 409 U.S. 847 (1972); 
Benedict v. Amaducci, No. 92 Civ 5239 (KMW), 1995 U.S. 
Dist. LEXIS 573, *3-*4 (S.D.N.Y. Jan. 18, 1995) 
(consultant); Foseco Int'l, Ltd. v. Fireline. Inc., 546 F. 
Supp. 22, 25 (N.D. Ohio 1982) (patent agent); Miller v. 
Haulmark Transcort Svstems, 104 F.R.D. 442, 445 i (E.D. Pa. 
1984) (insurance agent); Harkobusic v. General American 
Transc. Corp., 31 F.R.D. 264, 265 (W.D. Pa. 1962) 
(brother-in-law). 
 
Nor must the client be present at a meeting between his 
agents and his lawyer for the communications during the 
meeting to be protected by the attorney-client privilege. 
Thus, for example, in Foseco International Ltd. v. 
Firelire, Inc., 546 F. Supp. 22 (N.D. Ohio 1982), the court 
held that a meeting between the plaintiff's patent agent 
and the plaintiff's lawyer fell    ! within the scope of 
the attorney-client privilege, even though the Plaintiff 
was not present at the meeting. As the court explained, 
 
"these communications are in essence communications between 
the client and the client's attorney. The British patent 
agent acted at the direction and control of the plaintiff. 
Further, through the agency of its  patent agent, the 
plaintiff sought from the U.S. patent counsel legal advice 
and assistance concerning a U.S. patent application 
proceeding. Had the communications been made between the 
plaintiff and its U.S. counsel, the privilege would have 
attached. 
 
The Court finds that, given the purpose of the 
attorney-client privilege to encourage full and frank 
communication between attorneys and their clients, the 
communications made between [plaintiff], through its patent 
agent, and its U.S. patent counsel are privileged. The 
communications involved in this case were made in 
furtherance of the rendition of professional legal services 
to the client and were reasonably necessary for adequate 
legal assistance. 
 
Id. at 26.MV 
 
Fourth, the determination whether there exists an 
attorney-client relationship depends on the understanding 
of the client. "The professional relationship for purposes 
of the privilege hinges upon the belief that one is 
consulting a lawyer and his intention to seek legal advice. 
Wylie v. Marley Co., 891 F.2d 1463 1471 (10th Cir. 1989). 
Accordingly, the attorney client privilege applies to 
confidential communications between an individual and a 
person he reasonably believes to be his attorney, even if 
the attorney ultimately elects not to represent the client, 
and even if the attorney is not a member of the bar. /15 
 
Finally, it is important to note that the attorney-client 
privilege affords absolute protection to privileged 
communications. As the Ninth Circuit explained in Admiral 
Insurance Co. v. United States District Court, 881 F.2d 
1486 (9th Cir. 1989), 
 
 "the principal difference between the attorney-client 
privilege and the work-product doctrine, in terms of the 
protections each provides, is that the privilege cannot be 
overcome by a showing of need, whereas a showing of need 
may Justify discovery Of a! attorney S work product. Id. at 
1494 (quotation omitted). The attorney-client privilege 
cannot be vitiated by a claim that the information sought 
is unavailable from any other source. Id. at 1495. "Such an 
exception would either destroy the privilege or render it 
so tenuous and uncertain that it would be Little better 
than no privilege at all.'' Id. (quotation omitted)." 
 
2. The Attorney-Client Privilege Covers the November 5, 
1993 Meeting. 
 
a. Meeting Among Counsel. 
 
With these basic principles in mind, the analysis is 
straightforward and the answer clear. Every person present 
at the November 5, 1993 meeting was a lawyer whom the 
President and Mrs. Clinton understood to be representing 
them in either their personal or official capacities. 
Messrs. Kendall, Engstrom and Lyons were private attorneys 
acting as personal legal counsel for the Clintons at the 
time of the meeting. Messrs. Kennedy, Eggleston, and 
Nussbaum worked in the Office of White House Counsel and 
represented the Office of the President, including the 
President and First Lady in their official capacities, at 
that time. Mr. Lindsey was an attorney who had represented 
Mr. Clinton in the past; as of November 1993 he was working 
in the White House Personnel Office and also assisting the 
President (in his official capacity) on Whitewater, 
gathering information, determining how to respond to press 
calls, and providing legal advice and analysis to the 
Office of the President concerning matters occurring in 
Arkansas before 1993. 
 
Every attorney present at the November 5, 1993 meeting 
intended that the discussion that took place remain 
confidential The President and Mrs. Clinton also expected, 
and fully intended, that the conversation that took place 
among the counsel at the meeting remain privileged and 
confidential Indeed, attendance at the meeting was limited 
to these lawyers for this very reason. 
 
The discussion at the meeting concerned information and 
analysis necessary to the ability of private and White 
House counsel to represent the Clintons effectively in 
connection with Whitewater-related matters. The meeting 
facilitated the rendering of legal services to the Clintons 
by both private and White House counsel, and the 
communications that took place during the meeting without 
question "were made in furtherance or { the rendition of 
professional legal services to the client and were 
reasonably necessary for adequate legal assistance." 
Foseco, 546 F. Supp. at 26. 
 
Since the November 5 meeting among counsel for the 
President and Mrs. Clinton was held for the purpose of 
enabling counsel to provide legal advice to them, the 
conversation that took place falls at the heart of the 
attorney-client privilege. See Natta, 418 F.2d at 637; 
Chicaao Lawverst Committee, No. 76C1982, slip. op. (N.D. 
Ill. Apr. 27, 1981); Green, 556 F. Supp. i at 85; Foseco, 
546 F. Supp. at 25; In re D.H. Overmyer Telecasting Co., 
470 F. Supp. 1250, 1254-55 (S.D.N.Y. 1979); Burlington 
Indus., 65 F.R.D. at 36. Notes taken by counsel during the 
meeting, which reflect the substance of the discussion ; 
during the meeting, are necessarily protected as well. See 
Natta, 418 F.2d at 637 n.3; Green, 556 F. Supp. at 85. 
 
b. Meeting Among Client's Agents and Counsel. 
 
Mr. Lindsey was acting as the Clintons' lawyer at the 
meeting; but even if he had not been, as some on the 
Special Committee have suggested, his presence would in no 
respect have vitiated the attorney-client privilege. Mr. 
Lindsey was not only a lawyer but also a counselor to and 
agent of the President. Mr. Lindsey imparted information 
required by both personal and White House counsel in order 
to effectively represent the President, and he received 
information and advice necessary for him to assist the 
Office of the President in its functioning. It is 
well-settled that agents of a client may meet with counsel 
in furtherance of the attorney-client relationship. See 
Foseco, 546 F. Supp. at 25; Benedict, 1995 U.S. Dist. LEXIS 
at *3-4; Farmaceutisk Laboratorium Ferrina, 864 F. Supp. at 
1274; American Colloid Co., 1993 U.S. Dist LEXIS 7619 at 
*2-3; Carte Blanche, 130 F.R.D. at 33-34. Because Mr. 
Lindsey participated in the meeting with the expectation 
(shared by all present) that the discussion would remain 
confidential, and because he was able to provide 
information and analysis essential to the purpose of the 
meeting, his presence was completely consistent with the 
privilege. Under this scenario as well, the meeting was 
plainly privileged. 
 
B. The 1993 Meeting Was Protected by the "Common Interest" 
Privilege. 
 
1. The Common Interest Privilege. 
 
The meeting was also protected by the "common interest" 
privilege, which enables counsel for clients with a common 
interest "to exchange privileged communications and 
attorney work product in order to adequately prepare a 
defense without waiving either privilege."  16/ The 
privilege encompasses notes and memoranda of statements 
made at meetings among counsel and their clients with a 
common interest, as well as the statements themselves. In 
re Grand Jury Subpoena Dated Nov. 16 1974, 406 F. Supp. 
381, 384-94 (S.D.N.Y. 1975). The rationale for this 
well-accepted privilege is readily apparent: 
 
Whether an action is ongoing or contemplated, whether the 
jointly interested persons are defendants or plaintiffs, 
and whether the litigation or potential litigation is civil 
or criminal, the rationale for the joint defense rule 
remains unchanged: persons who share a common interest in 
litigation should be able to communicate with their 
respective attorneys and with each other to more 
effectively prosecute or defend their claims. 
 
In re Grand Jury Subpoenas, 89-3 & 89-4, 902 F.2d 244, 249 
(4th Cir. 1990). See also 2 Stephen A. Saltzberg, et al., 
Federal Rules of Evidence Manual 599 (6th ed. 1994) 
('Saltzberg") ("In many cases it is necessary for clients 
to pool information in order to obtain effective 
representation. So, to encourage information-pooling, the 
common interest rule treats all involved attorneys and 
clients as a single attorney-client unit, at least insofar 
as a common interest is pursued.") 
 
Thus, the common interest privilege may be asserted with 
respect to communications among counsel for different 
parties if "(1) the disclosure is made due to actual or 
anticipated litigation or other adversarial proceedings; 
(2) for the purposes of furthering a common interest; and 
(3) the disclosure is made in a manner not inconsistent 
with maintaining confidentiality against adverse parties." 
17/ If these circumstances are present, the communications 
are protected. Indeed, the privilege covers communications 
not only among counsel for clients with common interests 
but also between an individual and an attorney for a 
different party with a common interest. 18/ 
 
Of course, no two individuals or entities' interests will 
be totally congruent, and it is not necessary for every 
party's interest to be identical for the common interest 
privilege to apply; rather, the parties must have a "common 
purpose." United States v. McPartlin, 595 F.2d 1321, 
1336-37 (7th Cir. 1979), cert. denied, 444 U.S. 833 (1979). 
The question my of whether the parties share a 'common 
interest' "must be evaluated as of the time that the 
confidential information is disclosed." Holland, 885 F. 
Supp. at 6. 
 
2. The Common-Interest Privilege Covers the November 5, 
1993 Meeting 
 
All of the elements necessary for the proper assertion of 
a common interest privilege were present during the 
November 1993 meeting at Williams & Connolly. All of the 
attorneys present intended that their conversation remain 
confidential. As 4 a result of the reports regarding RTC 
referrals, all of the attorneys anticipated the possibility 
of adversarial proceedings at the time the meeting took 
place. Finally, all counsel present represented clients 
with common interests and purposes -- i.e., the President 
and Mrs. Clinton in their official and personal capacities. 
19/ 
 
As the submission of the White House establishes, it is 
critical for the lawyers in the White House to coordinate 
and consult with private counsel for the President and 
First Lady in order to fulfill their professional 
obligations. It is equally essential for personal counsel 
to talk with White House lawyers, in order to fully 
understand the facts and circumstances pertinent to their 
representation. It cannot be disputed that the President 
and the Presidency have a common interest; while it is 
conceivable that that interest could diverge --indeed, that 
is one reason for separate official and personal counsel -- 
the possibility of a future divergence in no respect 
undermines the privilege. And it is settled that private 
and government counsel may share a common interest. In 
United States v. American Tel. & N Tel. Co., 642 F.2d 1285, 
1300-1301 (D.C. Cir. 1980), for example, the court applied 
the "common interest" privilege to materials shared between 
a private company, MCI, at the government, and held that 
MCI did not waive the work-product privilege by sharing 
documents with the government in aid of a common purpose. 
Thus, the common interest privilege is applicable to the 
November 5, 1993, meeting and protects from disclosure the 
substance of the 4 communications that took place during 
the meeting, as well as notes and other documents 
reflecting the substance of those communications. 
 
And again, even if Mr. Lindsey had not been acting in { his 
capacity as counsel for the President at the November 5, 
1993 1 meeting, his presence at the meeting would not 
vitiate the common interest privilege. Just as an agent's 
presence at a meeting with counsel does not void the 
privilege, see McPartlin, 595 F.2d | at 1336, the presence 
of an appropriate agent at a joint defense meeting would 
not undermine the applicability of the privilege. 20/ 
 
C. Documents Reflecting the Discussion that Took Place at 
the November 5, 1993 Meeting Are Protected by the 
Work-Product Doctrine. 
 
The subpoenaed notes are also protected separately under 
the work product doctrine. 
 
1. The Work Product Doctrine. 
 
"The work product doctrine is an independent source of 
immunity from discovery, separate and distinct from the 
attorney-client privilege." In re Grand Jury, 106 F.R.D. 
255, 257 (D.N.R. 1985). It is "broader than the 
attorney-client privilege; it protects materials prepared 
by the attorney, whether or not disclosed to the client, 
and it protects material prepared by agents for the 
attorney." In re Grand Jury Proceedings, 601 F.2d 162, 171 
(5th Cir. 1979) (citations omitted). 
 
Unlike the attorney-client privilege, which "is not limited 
to communications made in the context of litigation, or 
even a specific dispute," Coastal States Gas Comm. v. 
Department of Energy, 617 F. 2d 854, 862 (D . C. Cir. 1980) 
,21/ the work- product doctrine "protects the work of the 
attorney done in preparation for litigation In re Grand 
Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994). 
However, litigation need only be contemplated at the time 
the work is performed for the doctrine to apply, see 
Holland, 885 F. Supp. at 7, and the term "litigation@ is 
defined broadly to encompass the defense of administrative 
and other federal investigations . 22/ 
 
As the Supreme Court observed in Hickman v. Taylor, 329 
U.S. 495 (1947), the work-product doctrine is critical to 
a lawyer's ability to render professional services to his 
client: 
 
"it is essential that a lawyer work with a certain | degree 
of privacy, free from unnecessary intrusion by opposing 
parties and their counsel. Proper preparation It of a 
client's case demands that he assemble information, sift 
what he considers to be the relevant go from the irrelevant 
facts, prepare his legal theories { and plan his strategy 
without undue and needless ! interference. . . . This work 
is reflected of course, be in interviews, statements, 
memoranda, correspondence, briefs, mental impressions, 
personal beliefs, and countless other tangible and 
intangible ways . . . . 
 
Were such materials open to opposing counsel on mere 
demand, much of what is now put down in writing would 
remain unwritten. An attorney's thoughts, heretofore I 
inviolate, would not be his own. Inefficiency, | unfairness 
and sharp practices would inevitably develop in the giving 
of legal advice and in the preparation of cases for trial. 
The effect on the legal profession would be demoralizing. 
And the interests of the clients and the cause of justice 
would be poorly served. Id. at 510-11. 
 
Although "factual" work-product may be discoverable upon a 
showing of substantial need for the information sought, the 
protection afforded to "opinion" work-product -- which 
reflects counsel's subjective beliefs, impressions, and 
strategies regarding a case -- is nearly absolute. As the 
D.C. Circuit explained in In re Sealed Case, 676 F.2d 793, 
809-10 (D.C. Cir. 1982), "to the extent that work product 
reveals the opinions, judgments, and thought processes of 
counsel, it receives some higher level of protection, and 
a party seeking discovery must show extraordinary 
justification." Accord Upjohn, 449 U.S. at 401 (opinion 
work product "cannot be disclosed simply on a showing of 
substantial need and inability to obtain the equivalent 
without undue hardship"). 
 
2. Notes Counsel During the Meeting Are Protected by the 
Work Product Doctrine. 
 
The subpoenaed notes fall directly within this protection. 
In addition to reflecting the substance of communications 
at the meeting, the notes Mr. Kennedy took during the 
November 5, 1993 meeting also reflect the thoughts, 
impressions, and strategies of the lawyers present. Each 
lawyer at the meeting brought different knowledge and 
expertise, each was there because of a common interest, and 
the questions asked, analyses offered, and conclusions 
reached all reflected the particular focus and input of 
these particular lawyers. That is the core of work product, 
and the notes are squarely protected from disclosure by the 
opinion prong of work-product doctrine as 2 well as the 
attorney-client privilege. They are, in short, "doubly 
non-discoverable." MCI, 124 F.R.D. at 687. 
 
V. THE PRIVILEGE SHOULD BE HONORED HERE. 
 
For a President, an assertion of privilege is extremely 
difficult . Such a claim, no matter how legitimate, 
inevitably leads partisan opponents to cry "stonewall." 
That is a predictable and irresistibly convenient political 
ploy. To date, the Special Committee, like the Independent 
Counsel, the RTC, and the House of Representatives, has 
received extraordinary cooperation from the President in 
its investigative efforts. But now, confronted with an 
increasingly popular President and public disinterest in 
Whitewater, the Special Committee majority is pushing its 
demands for access unreasonably into the privileged It 
relationship with personal counsel. 
 
In light of this effort, the easiest course would be simply 
to disclose one more document, to join the tens of 
thousands of confidential White House and personal 
documents already made available to the Senate. But this 
time the demand of the Special Committee majority, and its 
claim of "stonewalling are deeply unfair and, under the 
circumstances, require that a line be drawn to protect an 
important legal right: the President and Mrs. Clinton's 
privilege to consult confidentially with their private 
counsel, and that counsel's need to work with White House 
lawyers in order .to provide informed advice. It is the 
appropriate line to draw for at least two reasons: (1) 
because the right to consult in confidence with one's own 
lawyer is a right every citizen enjoys and respects, and 
(2) because the information the committee says it needs is 
otherwise available to it. 
 
(l) Regarding the right to consult with counsel, as stake 
here is the confidentiality of the Clintons on-going legal 
representation. As every lawyer well knows, counsel must be 
scrupulous not to allow even the smallest intrusion into 
the attorney-client relationship. Once there is any such 
intrusion, no matter if only a single disclosed document, 
adversaries can be counted upon to demand more. They would 
argue that there has been a waiver of the privilege 
with respect to all communications on the same subject 
matter and with the same counsel. There can be no doubt 
that the various investigators would do just that, and a 
court would have to decide, ultimately, the scope of the 
waiver, if any. Thus, any disclosure of communications, 
like the subpoenaed notes, that are a part of that personal 
legal relationship, no matter how narrow, necessarily 
places the Clintons' basic right and ability to talk to 
their lawyers in confidence at unacceptable risk. A lawyer 
and a client who believe a communication was privileged 
must protect it if they are to protect their relationship. 
 
(2) Regarding the need for information, the Special 
Committee majority has failed to state a credible need for 
the information in the document. The majority has refused 
to avail itself of testimony available to it, by which it 
could try to obtain the information it purports to need 
without the unprecedented incursion on the lawyer-client 
relationship that it now demands. Its refusal to do so can 
only be attributed to its preference for the rhetoric of a 
fight. 
 
The Committee cites a need for the document in order to 
know what confidential governmental information, if any, 
was transmitted to the Clintons' personal lawyers at that 
meeting, and what confidential information, if any, was 
collected in light of that meeting. There are numerous 
flaws in this argument. 
 
The very premise of the inquiry is wrong. Any so-called 
confidential governmental information obtained prior to 
November 5 by any of the Participants at that meeting was 
in the press, and by no means Confidential any longer, by 
the time of the meeting. The sworn testimony of White House 
participants in the November 5 meeting, like that of 
individuals in the RTC and elsewhere with whom they spoke, 
establishes what information White House officials had 
learned by mid-October 1993 about ongoing federal 
investigations. Notably, that testimony also demonstrates 
that much of what they knew they learned foam the press, 
not from government officials. But whatever the sources, 
the press accounts beginning on October 51, Egg] about the 
Resolution Trust Company referrals, the SBA investigation, 
Madison Guaranty, David Hale, the Rose Law Firm, and Seth 
Ward, put an enormous amount of detail about the pending 
investigations on the public record. Whereas White House 
Counsel had heard vague references to RTC referrals and 
"Madison," the news stories recounted the activities of 
the various investigators in minute a detail. This flood of 
public reporting totally undermines even the premise that 
the meeting participants had any "confidential" 
governmental information to share. 
 
The present conflict is wholly unnecessary because the 
Special Committee has available to it the means to obtain 
the information it legitimately seeks without invading the 
attorney- client privilege. For whatever reason, it has 
provoked this confrontation without exhausting available 
alternatives. For whatever reason, the majority is more 
concerned with precipitating a legal fight than with 
actually trying to obtain information in an appropriate 
way. On December 7, 1995, White House and personal counsel 
for the President presented what was essentially a 
three-step framework for resolving the impasse. 
 
We emphasized that no objection would be interposed to 
questions concerning what White House personnel knew about 
official governmental information when they went into the 
November 5, 1993, meeting (as previously demonstrated, 
the  information available from White House-Treasury 
"contacts" in the September-October period was already in 
the press by November 5). Indeed, as a result of the 
President's willingness to allow the Senate extensive 
questioning of his attorneys who were present at the 
meeting, the Committee already knows (or has available to 
it) what information the White House participants had with 
them going into that meeting. The Special Committee is free 
to assume (although we make no such representation) that 
everything known by the lawyers from the White House who 
attended the meeting was communicated to Messrs. Kendall 
and Engstrom. 
 
We explained that counsel for the Special Committee is free 
to pose general questions about the purpose of the meeting. 
| An appropriate purpose is a prerequisite for the 
assertion of a legal privilege, and there would be no 
objection to questions that go to purpose, so long as they 
do not require disclosure of I communications at the 
meeting. The Special Committee has declined to ask such 
questions, yet an examination upon this subject would 
elicit relevant information without requiring disclosure of 
privileged communications at the meeting. 
 
We stated that counsel for the Special Committee is 
entirely free to test the responses it receives regarding 
the purpose of the meeting by asking what the White House 
personnel did after the meeting. The Committee may even ask 
why certain steps were taken. Indeed, it may even ask 
whether the steps were taken as a result of the meeting, so 
that the witness and counsel could determine whether the 
question might be answered without disclosing 
communications at that meeting. This step-by-step, 
question-by-question process is commonplace in litigation, 
and indeed compelled by the recognized need to protect 
confidential lawyer communications. 
 
As counsel for the Special Committee is well aware, 
whenever a privilege is invoked in litigation, it is often 
possible answers to a great many questions so long as 
privileged communications are not divulged. While this may 
be a | painstaking process, requiring the witness and 
counsel to consider after each question whether the witness 
may answer without disclosing privileged communications, it 
is possible to move forward and acquire a great deal of 
information without violating the privilege, if in fact 
answers to the questions posed would not invade the 
privilege. In its rush for a ', confrontation, the Special 
Committee majority has not availed itself of this 
time-tested way of both obtaining information and defining 
the exact bounds of the asserted privilege. 
 
The President's lawyers have proposed proceeding as we have 
described because that process could very well provide the 
Special Committee with the information it needs, while at 
the same time preserving the privilege and avoiding a 
constitutional confrontation. That plainly is the wisest 
course, and we urge the Committee to consider this approach 
seriously before demanding an intrusion into this protected 
relationship. 
 
CONCLUSION 
 
For the foregoing reasons, we respectfully submit that the 
Special Committee should respect the assertions of 
privilege of William H. Kennedy, III, Esq. 
 
December 12, 1995 
 
Respectfully submitted, 
 
WILLIAMS & CONNOLLY 
 
By /s/ David E. Kendall 
Nicole K. Seligman 
Marcie R. Ziegler 
Max Stier 
 
725 12th Street, N.W. 
Washington, D.C. 20005 
(202) 434-5000 
 
Attorneys for the President and Mrs. Clinton 
 
 ENDNOTES 
 
[FN1] As Senator Simon noted at the Special Committee's 
hearing or December 11, 1995, in the current issue of 
Newsweek, it is reported that this Committee is targeting 
Mrs. Clinton's chief ax staff, Ms. Margaret Williams, as a 
proxy for Mrs. Clinton herself. "'We're going to crush her 
[Ms. Williams],' says one committee staffer.' Turque & 
Isikoff, Lost in Whitewater, Newsweek Dec. 18, 1995, at 39. 
 
[FN2] The article also demonstrated a familiarity with the 
referral decision-making process, reporting that "[t]here 
was protracted debate within the RTC about whether Madison 
transactions involving the Clintons should be included in 
documents sent to Casey, because the investigation focuses 
primarily on the handling of S&L funds by Madison 
officials . . . The RTC's investigators who are based in Kansas 
City were prepared to forward the information earlier this 
fall, but the decision to send the referrals on was not 
made until early October, the sources said." Id. at A14. 
 
[FN3] More specifically, the article stated that "the RTC 
has asked Casey to determine whether checks to the Clinton 
campaign were paid from overdrawn accounts with the 
authorization of Madison's owner, James 3. McDougal, or 
whether Madison loans intended for other purposes were used 
for campaign contributions Id. at A14. "RTC investigators 
have examined I irregular Madison transactions that took 
place in April 1985 and I have attempted to find out who 
endorsed and deposited a series of checks made out to 
Clinton or the gubernatorial campaign, one source familiar 
with the probe said." Id. The article noted that the 
campaign fund was maintained at an Arkansas bank, the Bank 
of Cherry Valley. As to the allegations concerning 
President Clinton, the article reported that Bathe sources 
said there is no indication Clinton had personal knowledge 
of or involvement in the transactions." Id. at Al. The 
story further divulged that, according to government 
sources, the RTC in its own investigation had gone "to 
extraordinary lengths to trace real estate transactions 
involving Whitewater Development Corporation" -- in which 
the Clintons and McDougals were partners -- and that these 
transactions were among the matters referred to the U.S. 
Attorney. Id. at A14. The RTC also had reportedly requested 
further federal investigation of Governor Guy Tucker's 
involvement with Madison Guaranty Savings & Loan. Id. 4 at 
A1. 
 
[FN4] Specifically, the Times article reported that "two 
Federal agencies have been trying to find out whether more 
than $250,000 in business loans was improperly diverted 
from Madison in April 1985 to several sources, including 
Mr. Clinton's reselection campaign for governor." Id. 
According to the article, "[t]he officials said the 
campaign received $12,000 in cashier's checks We from 
Madison, some of which appeared to have been paid for by 
the business loans." Id. But, the article reported, the 
President is neither the subject nor a target of the 
investigation, which is still in its early stages." Id. In 
addition, the Times story reported on interviews given by 
Mr. Hale in which he alleged that the $300,000 loan made by 
his company to Susan McDougal was to be used to Conceal 
questionable transactions by Madison, including indirect 
help for the Clintons." Id. According to the cited  Hale 
interviews, Madison Guaranty financed a land deal for Mr. 
Hale "in February 1986 in which he was paid hundreds of 
thousands  of dollars more than the property was worth," 
and which permitted  him to make the $300,000 loan to Mrs. 
McDougal. Mr. Hale alleged  that then-Governor Clinton 
personally pressed him to make the $300,000.00 loan." Id. 
The article additionally described  allegations That 
Madison was helping Whitewater," and that Bathe  company 
had frequent sizable overdrafts on its account at 
Madison." Id. 
 
[FN5] The Post reported that the lead attorney for the Rose 
Law Firm's FDIC representation, Webster Hubbell, had 
informed the FDIC that his father-in-law, Seth Ward, had 
been an executive for Madisons real estate investment 
company and had failed to repay substantial loans to 
Madison. The article concluded with the assertion that 
Hillary Clinton was one of the lawyers who represented 
Madison in 1985 when the failing S&L sought approval for a 
recapitalization plan from the state securities 
commissioner while her husband was governor." Id. Madison 
was also described as having made "loans to prominent 
Democrats including Mr. Fulbright and Jim Guy Tucker, a 
Little Rock lawyer ; who is now Governor of Arkansas." Id. 
 
[FN6] The article reprinted a 1988 letter from Mrs. Clinton 
to Jim McDougal requesting a power of attorney to "manage 
and conduct all matters related to Whitewater Development. 
And it provided additional details about the David Hale 
issue that the SBA was investigating, and about Mr. Hale's 
allegations about Mr. Clinton Specifically, it recounted 
Mr. balers charge that then Governor Clinton requested 
Hale's help in February 1986 at the State Capitol and a 
second time in March 19s6 at Mr. McDougals office. 
 
[FN7] The article then detailed at considerable length 
certain correspondence in the mid-1980's between attorneys 
at the Rose Law Firm and Charles F. Handley and Beverly 
Bassett Schaffer of the Arkansas Securities Department in 
connection with a Madison Guaranty matter. 
 
[FN8] The 1994 Senate Committee on Banking, Housing and 
Urban Affairs Hearing on the Whitewater Matter established 
that the RTC was extremely prone to Leaking confidential 
information. I. was thus not surprising that the press was 
able to obtain so much inside information about criminal 
referrals that the RTC had made or was in the process of 
making. In response to a question from : Senator Shelby, 
Deputy CEO of the RTC Jack Ryan responded, "Well, that's 
the problem, I think, Senator, is that the RTC does leak . . . 
[The referral information] was supposed to be 
confidential and the RTC has a responsibility to keep that 
information confidential as well. And the RTC breached that 
responsibility." 
 
Hearing T., at 61-62 (Aug. 1, 1994).    In response to a 
question from Senator Murray, Mr. Ryan responded: 
 
The responsibility for maintaining the confidentiality of 
that information, of any information, investigative or 
otherwise, that could damage a case that the RTC is 
bringing, is a responsibility first and foremost of the RTC 
itself, it seems to me, and we haven't been very good about 
keeping those matters confidential. It's almost a certainty 
abound the RTC that any matter that has any kind of public 
interest at all is leaked to the press prematurely . . . . 
[W]e're quite concerned about it. I think partly it's the 
nature of the RTC . We have 60 -- 6500 employees many of 
whom are going to be out of a job come the end of next year 
when the RTC goes out of business, so there's not much of 
an incentive for institutional loyalty. There's not much 
concern by the employees of the RTC about doing something 
that might affect their employment there, and we've had a 
lot of premature leaks of very sensitive information. 
 
Id.at 122-123. Senator Murray asked Steven Katsanos, 
Director of Communications for the RTC, "how . . . the New 
York Times received information about criminal referrals 
regarding Madison," and Mr. Katsanos responded: 
 
"I have no idea. I would like to have to concur with my 
colleagues here, and I'd have to reflect that when I was a 
reporter, I would have loved to have had the job of 
covering the RTC . It is, because of the staff here, 
because of the people within the RTC, one of the easiest 
agencies to cover. One reporter once referred to it as not 
a very challenging agency -- it's like shooting dead fish 
floating in a barrel of water. It's an exceptionally easy 
agency to cover. . . . You can get information from RTC 
staff, from RTC contractors. You can get information from 
Congressional staff and that's unique to the RTC. It's just 
since it is such a visible organization with such a 
controversial job with so many different players involved, 
it's a simple job as far as a reporter is concerned." 
 
Id. at 125-125. 
 
[FN9] Because of a potential conflict, Mr. Engstrom 
withdrew from the Whitewater representation later in 
November, 1993, and was replaced as local counsel by John 
Tisdale, Esq., of the Wright, Lindsey & Jennings firm in 
Little Rock. Mr. Engstrom presently represents the 
President in civil litigation. 
 
[FN10] As the Supreme Court also stated, Bathe privilege 
recognizes that sound legal advice or advocacy serves 
public ends and that such advice or advocacy depends upon 
the lawyer's being fully informed by the client.@ 449 U.S. 
at 389; see also Hunt v. Blackburn, 128 U.S. 464, 470 
(1888) (attorney-client privilege is "founded upon the 
necessity, in the interest and administration 5 of justice, 
of the aid of persons having knowledge of the law and 
skilled in its practice, which assistance can only be 
safely and readily availed of when free from the 
consequences or the apprehension of disclosure."). 
 
[FN11] See, e.g., Natta v. Zletz, 418 F.2d 633, 637 (7th 
Cir. 1969) { ("correspondence between house and outside 
counsel . . . clearly fall within the ambit of the 
attorney-client (collecting cases); Chicano Lawyers 
Committee for Civil Rights Under Law. Inc. v. City of 
Chicano, No. 76 C 1982, slip. op. (N.D. Ill. Apr. 27, 1981) 
(attorney-client privilege extends to  meeting between 
"attorneys discussing the giving of legal advice or 
assistance in anticipation of pending litigation"); Green, 
556 F. Supp. at 85 (attorney-client privilege reapplies 
equally to inter-attorney communications); Foseco Int'l 
Ltd. v. Fireline Inc., 546 F. Supp. 22, 25 (N.D. Ohio 1982) 
("the Court finds that if the communications between 
Foseco's U.S. patent counsel and local counsel in 
Washington, D.C. were confidential communications and, 
therefore, subject to the attorney-client privileges); In 
re D.H. , Overmyer Telecasting Co., 470 F. Supp. 1250, 
1254-55 (S.D.N.Y. 1979) (conversations between in-house and 
outside counsel protected by attorney-client privilege); 
Burlington Incus. v. Exxon Corn., 65 F.R.D. 26, 36 (D. Md. 
1974) (confidential communications between in-house and 
outside counsel, as well as between two outside lawyers 
representing the same client, fall within scope of 
attorney-client privilege) (collecting cases). 
 
[FN12] See Green, 556 F. Supp. at 85 (privilege applies to 
"an attorneys notes containing information derived from 
communications to him from a client. That information is 
entitled to the same degree of protections from disclosure 
as the actual communication itself."); accord Natta, 418 
F.2d at 637 n.3 ("insofar as inter-attorney communications 
or an attorney's notes contain information which would 
otherwise be privileged as communications to him from a 
client, that information should be entitled to the same 
degree of protection from disclosure. To hold otherwise 
merely penalizes those attorneys who write or consult with 
additional counsel representing the same client for the 
same purposes As such it would make a mockery of both the 
privilege and the realities of current legal assistance "); 
Smith v. MCI Telecommunications Corn., 124 F.R.D. 665, 687 
(D. Kan. 1989). 
 
[FN13] This is particularly true in the governmental 
context. As the Office of Legal Counsel explained in a 1982 
opinion letter, 
 
"it is likely that, in most instances, the "client" in the 
context of communications between the President and the 
Attorney General, and their respective aides, would include 
a broad scope of White House advisers in the Office of the 
President. The "unfunctional" analysis suggested by Upjohn 
focuses on whether the privilege would encourage the 
communication of relevant and helpful information from 
advisers most familiar with the matters on which legal 
assistance is sought, as well as whether the privilege is 
necessary to protect and encourage the communication of 
frank and candid advice to those responsible for executing 
the recommended course of action. A corollary to this 
expanded concept of the "client which reflects the 
realities of the governmental setting, is that the 
"attorney" whose communications are subject to the 
attorney-client privilege may, in fact, be several 
attorneys responsible for advising the Clients" 
 
6 Op. O.L.C. 481, 496 (Aug. 2, 1982). 
 
[FN14] See also Benedict, 1995 U.S. Dist. LEXIS 573, at 
*3-4 Conversations between plaintiffs' counsel and 
consultant retained by plaintiffs to prepare them for 
prospect of litigation and assist with litigation "are 
protected by the attorney-client privilege, because [the 
consultant] was acting as plaintiffs' representative during 
those consultations."); Farmaceutisk Laboratorium Ferring 
A/S v. Reid Rowell. Inc., 864 F. Supp. 1/73, 1274 (N.D. Ga. 
1994) (independent consultant was so meaningfully ; 
associated with corporation that it could be considered 
insider for purposes of privilege); American Colloid Co. v. 
Old Republic Ins. Co., 1993 U.S. Dist LEXIS 7619, *2-3 
(N.D. Ill. June 4, 1993) (communications between 
plaintiff's agents and plaintiff's  counsel are 
privileged); Carte Blanche PTE. Ltd. v. Diners Club Intel 
Inc., 1.30 FARAD. 28, 33-34 (S.D.N.Y. 1990) (correspondence 
between client's agent and client's counsel protected by 
attorney-client privilege), subsequent opinions rev'd on 
other Grounds, 2 F.3d 24 (2d Cir. 1993). 
 
[FN15] See United States v. Mullen & Co., 776 F. Supp. 620, 
621 (D. Mass. 1991) ("the attorney-client privilege may 
apply to confidential communications made to an accountant 
when the client is under the mistaken, but reasonable, 
belief that the professional from whom legal advice is 
sought is in fact an attorney."); United States v. Tyler, 
745 F. Supp. 423, 425-26 (W.D. Mich. 1990); United States 
v. Boffa, 513 F. SUPD. 517, 523 (D. Del. 1981). 
 
[FN16] Haines v. Liggett Group Inc., 975 F.2d 81, 94 (3d 
Cir. 1992); see also Walter v. Financial Corp. of America, 
828 F.2d 579, 583 n.7 (9th Cir. 1987) ("communications by 
a client to his own lawyer remain privileged when the 
lawyer subsequently shares them with co-defendants for 
purposes of a common defense") (quoting United States v. 
McPartlin, 595 F.2d 1321, 1326 (7th Cir. 1979), cert. 
denied, 444 U.S. 833 (1979)); In re Grand Jurv it Subcoena 
Duces Tecum Dated Nov. 16, 1974, 406 F. Supp. 3El, 389 
(S.D.N.Y. 1975) ("the attorney-client privilege covers 
communications to a prospective or actual co-defendant's 
attorney when those communications are engendered solely in 
the interests of a joint defense effort."). 
 
[FN17] Holland v. Island Creek Corn., 885 F. Sups. 4, 6 
(D.D.C. 1995); see also United States v. Bav State 
Ambulance & Host. Rental Service, 874 F.2d 20, 28 (lst Cir. 
1989); In re Bevill, Bresler & Schulman Asset Manaaement 
Corm., 805 F.2d 120, 126 (3d Cir. 1986); In re LTV Sec. 
Litig., 89 F.R.D. at 604. It is not necessary for actual 
litigation to have commenced at the time of the meeting for 
the privilege to be applicable. United States v. Schwimmer, 
892 F.2d 237, 244 (2d Cir. 1989), cert. denied, 502 U.S. 
810 (1991). 
 
[FN18] See Schwimmer, 892 F.2d at 244 (it is not necessary 
for attorney representing the communicating party to be 
present when the communication is made to the other party's 
attorney); McPartlin, 595 F.2d at 1335 (applying common 
interest rule to communications between client and agent 
for attorney of person with common interest); Saltzberg at 
600 (8BThe fact that clients are present at a consultation 
in the common interest certainly should not preclude the 
application of the common interest ruie, so long as the 
statements are otherwise intended to remain confidential 
and are made for purposes of obtaining legal advice in the 
common interest."). 
 
[FN19] The attorney-client privilege applies to 
confidential communications between government attorneys 
and their clients in the same manner in which it applies to 
communications between private counsel and their clients. 
See Green, 556 F. Supp. at 85 (attorney-client privilege 
Unquestionably is applicable to the relationship between 
Government attorneys and administrative personnel") 
(collecting cases); SEC v. World-Wide Coin Investments. 
Ltd., 92 F.R.D. 65, 67 (N.D. Ga. 1981) (attorneyclient 
privilege applied to communications between SEC lawyers and 
staff); Jusiter Painting Contractina Co. v. United States, 
8/ F.R.D. 593, 598 (E.D. Pa. 1380) ("Courts generally have 
accepted that attorney-client privilege applies in the 
governmental context"). 
 
[FN20] Moreover, in addition to serving as counsel to the 
President and Mrs. Clinton at the November 5, 1993 meeting, 
Mr. Lindsey also may be viewed as a "client" for purposes 
of the meeting under the functional definition of that term 
set forth in the Office of Legal Counsel's August 2, 1982 
opinion letter. See note 13, sucra. As a White House 
official working on Whitewater-related issues, Mr. Lindsey 
was extremely familiar with "the matters on which legal 
assistance was sought," 6 Cp. O.L.C. at 496, and his 
presence at the meeting was necessary both to transmit 
information to other White House and personal counsel and 
to receive information required in order to fulfill his 
official responsibilities with respect to Whitewater. 
Accordingly, Mr. Lindsey falls squarely within the 
definition of "clients elucidated in the Office of Legal 
Counsel's opinion letter, and his presence at the meeting 
is for this reason as well fully consistent with the 
assertion of the common interest privilege. 
 
[FN21] See also Flynn v. Church of Scientology Int'l, 115 
F.R.D. 1,3 (D. Mass. 1986) ("one who consults a lawyer with 
a view to obtaining professional legal services from him is 
regarded as a client for purposes of the attorney-client 
privilege."). 
 
[FN22] See, e a., In re Grand Jury Proceedings (Doe), 867 
F.2d 539 (9th Cir. 1989) (applying work-product doctrine in 
context of grand jury investigation); In re Sealed Case, 
676 F.2d 793 (D.C.Cir. i982) (applying work-product 
doctrine to documents created by counsel rendering legal 
advice in connection with SEC and IRS investigations). 
 
          APPENDIX A 
 
THIS COMMITTEE'S FINDINGS AS TO TREASURY/WHITE ROUSE 
CONTACTS 
 
According to both the majority and minority views in the 
Senate report on Treasury/White House "contacts," 1/ those 
meetings focused generally on the existence of the criminal 
referrals, not their specifics. And what details were known 
were more often than not gleaned from press inquiries. See 
Committee Report at 31 ("Mr. Gearan testified that he 
understood that all of the information under discussion had 
been transmitted to the Treasury by reporters."). 
 
For example, at the October 14, 1993, White House 
meeting,2/ the second of the Treasury/White House 
"contacts" and the last to take place before the Williams 
& Connolly meeting, "[all of the meeting's attendees 
testified that Mr. DeVore began the meeting and related 
what he had been told by Mr. Gerth of the New York Times." 
Id. at 27.3/ According to Mr. DeVore, Mr. Gerth told him 
that the RTC was investigating Madison and that part of the 
investigation centered on a 1985 fundraiser for then 
Governor Clinton and contributions made by checks drawn on 
Madison and deposited in another bank." Id. at 23. Mr. 
DeVore also testified that "Mr. Gerth sought his help in 
determining who had contributed the checks or who had 
endorsed the checks" and 'mentioned Governor Tucker." Id. 
 
Bruce Lindsey, a lawyer in the White House a former law 
partner of the President and a lawyer for then-Governor 
Clinton, who was analyzing legal issues in the White water" 
questions [ emerging in the fall of 1993, testified that 
the major parts of at the meeting consisted of Mr. DeVore 
describing several inquiries  he had received and focusing 
in on one of those inquiries." Id. at 28. The Committee 
Report concluded that "Mr. Lindsey's description of the 
meeting, particularly Mr. DeVore's recounting of press 
inquiries, is supported by his notes . . . . " Id. at 29. 
Those notes list reporter names and then brief notations on 
the inquiries. For example, "Madison Guaranty" and "1985 
Rose Law Firm" are written under the name of "Sue Schmidt," 
a reporter for The Washington Post. Not surprisingly, the 
information contained in the notes associated with the 
various reporters resurfaced in greater detail in the news 
stories written by those reporters that were published 
prior to the November 5 meeting. 
 
Similarly, according to the Committee Report, O'er. Gearan 
testified that he understood that all of the information 
under discussion had been transmitted to the Treasury by 
reporters.| Id. at 31. His notes also contained reporters' 
names associated with a variety of statements concerning 
the RTC's referral. Once again, the information contained 
in the inquiries It as set out in Mr. Gearan's notes 
represented the kernels of later news stories. 
 
Ms. Hanson apparently was the sole attendee at the meeting 
who testified that the information she provided on the 
referral had not come from press inquiries but rather from 
the RTC. See id. at 34. Ms. Hanson testified that she "told 
the group that the referrals mentioned the Clintons 'solely 
as possible witnesses' and that at least one referral 
related to a possible conspiracy to divert funds among a 
Clinton gubernatorial campaign, McDougal, and Peacock." Id. 
at 33. 
 
Communications to the White House prior to the October 14th 
meeting were even less detailed. On September 29, 1993, at 
the first White House-Treasury "contact" on Whitewater 
issues, Ms. Hanson had alerted Mr. Nussbaum to the 
existence of the RTC referral and the possibility of press 
leaks. According to Mr. Nussbaum's uncontroverted 
testimony, gems. Hanson told him that these referrals 
involved the activities of an Arkansas savings and loan 
association, which she may or may not have identified as N 
Madison[, and] . . . that one of the referrals involved the 
possibility of improper campaign contributions from the 
savings and loan to the Clinton gubernatorial campaign." 
Id. at 11.4/ 
 
Joining the Hanson/Nussbaum discussion a few minutes later, 
| Associate White House Counsel Clifford Sloan testified 
that "Ms. Hanson told him and Mr. Nussbaum that there had 
been eight or nine referrals, that the referrals mentioned 
the Clintons as witnesses, that the referrals mentioned a 
Clinton gubernatorial | campaign more extensively, that Mr. 
Altman had sent Mr. Nussbaum T some material on this 
matter, and [had stated] that 'there might 2 be' press 
inquiries." Id. at 12. Mr. Sloan's impression was that the 
referrals had already been made or were a 'fait accompli, 
and that the conversation lasted approximately five 
minutes. Id. The information shared by Ms. Hanson was 
published and expanded upon in news stories published in 
the week prior to the November 5 meeting. 
 
According to the Committee Report, information about the 
RTC referral was transmitted from Ms. Hanson to Mr. Sloan 
(and then on to others in the White House) on two 
additional occasions before the October 14th meeting./5 Ms. 
Hanson made telephone calls to Mr. Sloan on September 30th 
and on October 7th. "Mr. Sloan testified that she generally 
passed along to him questions which were being asked by 
reporters from the Washington Post and New York Timestw and 
that his notes were consistent with that recollection. Id. 
at 15-16. 
 
The notes taken on September 30th refer among other things 
to "9 referrals," "Whitewater Co. -- re: Clinton principals 
and "Jim Guy Tucker." Id. at 16. The more lengthy notes 
from October 7th, organized by the reporter making the 
inquiries, contain additional names including "Seth Ward" 
and the "Rose Law Firm." Id. at 21. Like the notes of press 
inquiries from the October 14th meeting, Mr. Sloan's notes 
look like the rough outlines of future news stories that 
they were. 
 
ENDNOTES 
 
[FN1] See generally Report of the Committee on Banking, 
Housing, and Urban Affairs on the Communications between 
Officials of the White House and the U.S. Department of the 
Treasury or the Resolution Trust Corporation, S. Rep. No. 
433 Vol. II, 103d Cong., 2d Sess. (1994) ("Committee 
Report"). 
 
[FN2] The meeting attendees were Mr. DeVore, Ms. Hanson, 
Mr. Steiner, Mr. Eggleston, Mr. Gearan, Mr. Lindsey, Mr. 
Nussbaum and Mr. Sloan. Id. at 26. . 
 
[FN3] For the purpose of understanding the extent to which 
any  i confidential information was discussed at this 
meeting, the testimony of the witnesses is consistent and 
uncontroverted. "The differences in the witnesses 
recollections center on: (i) who told the group about which 
press inquiries; (ii) who told the group the referrals had 
been made; and (iii) whether any advice was sought or given 
with respect to how Mr. DeVore should respond to press 
inquiries on the referrals." Id. at 27. 
 
[FN4] Mr. Nussbaum also gave sworn testimony that "he 
believed  I that White House officials did not require 
further information from the Treasury to respond to press 
inquiries," and he did not ask for copies of the referrals 
or for more information about the referrals because it was 
not necessary." Id. at 13. 
 
[FN5] Ms. Hanson called Mr. Sloan a third time "to tell him 
that the press people had set up a meeting between White 
House and Treasury officials on October 14, 1993." Id. at 
22.