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July 19, 1995 - Part 1
(10:55:25) Mr. HUBBELL. It depends on the circumstance. If you have the door locked and you have somebody who is keeping track of who goes in and out, and nothing is being removed, then I wouldn't think time is of the essence. I don't know what happened, Senator. Senator SHELBY. Basically what happened, the fox was watching the hen house this time, wasn't he? Mr. Nussbaum-if you can use that category-he was the fox watching the hen house to make sure that his inventory or what he was going to see in there was going to be protected before the FBI or the Park Police got in, isn't that the bottom line? Mr. HUBBELL. Senator, again, I just don't know what happened, so I can't tell you. I believe the Secret Service was the one who was guarding the office, but I may be wrong about that. I don't know. Senator SHELBY. Do you believe that there's any attorney-client privilege between the President of the United States and the White House Counsel, who is a public servant, not a personal attorney? Mr. HUBBELL, Yes, I do. Senator SHELBY. What's that based on? Mr. HUBBELL. That's just gut reaction. I've never done any research, Senator. Senator SHELBY. You haven't done any research. Now, if I had someone on my staff as a Senator as counsel-and I do-to do Senate work and so forth, would you think that I would have an attorney-client relationship with that person, or would that person be a public servant? Mr. HUBBELL. I believe that you would have an attorney-your counsel Senator SHELBY. My counsel working for the Government, paid by the Government, would be my personal counsel? Mr. HUBBELL. He would have an attorney-client privilege. I did not say he was your personal counsel. I may be-I've just never done the research on this, Senator. Senator SHELBY. You don't know. When Mr. Nussbaum was over .at the White House, would you think that he was obviously concerned about more than just the cleaning people going in that office? Mr. HUBBELL. You're asking if Mr. Nussbaum was concerned about other people coming into the office? Senator SHELBY. Yes. Mr. HUBBELL. I'm sure he was. Senator SHELBY. But he went in the office, did he not? 96 Mr. HUBBELL, I don't know. Senator SHELBY. You don't know of your own knowledge? Mr. HUBBELL. No, I don't, sir. Senator SHELBY. You don't know of your knowledge or you heard that he went into the office? Mr. HUBBELL. No, I did not. I've read a lot of articles in the press, but I've learned never to believe them. Senator SHELBY. Do you believe that the law enforcement officers here, the Park Police, the FBI, the White House Counsel and the Justice Department, were in an adversarial relationship? Mr. HUBBELL. I would hope not, Senator. Senator SHELBY. They weren't at all? Mr. HUBBELL. I would hope they were not. Senator SHELBY. But when the White House Counsel says no, you cannot go in this office, what does that say to someone? Mr. HUBBELL. If that was said Senator SHELBY. Assuming that was said. Mr. HUBBELL. I think there would have to be some discussions Senator SHELBY. Would that lead you to believe why would you not want the FBI in there? Mr. HUBBELL. I can think of reasons why I wouldn't want the FBI in that office, yes. Senator SHELBY. Would it lead 'You to believe or draw an inference or reasonable. inference that maybe there was something to hide in there? Mr. HUBBELL. To hide, I think, is the wrong word, Senator. Senator SHELBY. Why is it the wrong word? Mr. HUBBELL. Because I wouldn't want the FBI to be reviewing, for example, a short list of Supreme Court candidates and their pros and cons, and have the potential of that kind of thing being leaked to the press. Senator SHELBY. Why would you-strike that. What would be wrong with Mr. Nussbaum saying come on in and let's go through and inventory these things together? If I see something that is national security conscious or sensitive, we'll inventory. We've got this item, We'll put a stamp on it. We'll put a number on it. Wouldn't that look like goodwill and openness and honesty to you? Mr. HUBBELL. Yes, Senator. I think I've said that that could be, a very good way to handle this. Senator SHE LBY. Senator Hatch is here and I'm going to yield the balance of his time back to him. OPENING COMMENTS OF SENATOR ORRIN G. HATCH Senator HATCH. I apologize for being late. I'm managing the Regulatory Reform Bill and had to leave for a few minutes. Good to see you again, Mr. Hubbell. Mr. Hubbell, you've had extensive experience as a litigator in private practice. You've been a State Supreme Court Justice and you've been a high-level official in the Justice Department. I want': to ask a few questions about attorney-client privilege and I hope you can be of assistance. Isn't the attorney-client privilege, as generally defined, a privilege only that, number one, protects commu- 99 nication and, number two, protects communication between a client and his or her attorney?
July 19, 1995 - Part 1
(11:00:42) Mr. HUBBELL. I believe that's correct, Senator. Senator HATCH. Isn't the privilege normally asserted in anticipation of litigation? Mr. HUBBELL. I believe that's correct. That's my experience. Senator HATCH. Wouldn't you agree that a document can be deemed to be protected by the attorney-client privilege only if it meets those basic requirements? Mr. HUBBELL. I'm going to only be able to give you the opinion based on Arkansas law, which I don't think is applicable here, but I believe you're essentially correct, Senator. Senator HATCH. It may have some applicability. Wouldn't you agree that a client-go ahead. Mr. HUBBELL, No, I'm fine. Senator HATCH. Wouldn't you agree that a client can waive the privilege either by intentionally waiving the communication or by disclosing it to a third party? Mr. HUBBELL. In Arkansas, you can have even an inadvertent waiver of the privilege, that's correct. Senator HATCH. That's probably true in a lot of other places, Mr. HUBBELL. Right. Senator HATCH. Let's examine the case of the Whitewater documents that the President has chosen to withhold based upon a claim of executive privilege. Now, Vincent Foster was a Government employee; right? (11:02:03)(tape #10012 ends)
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July 19, 1995 - Part 2
(11:00:01)(tape #10113 ends) OPENING COMMENTS OF SENATOR ORRIN G. HATCH Senator HATCH. I apologize for being late. I'm managing the Regulatory Reform Bill and had to leave for a few minutes. Good to see you again, Mr. Hubbell. Mr. Hubbell, you've had extensive experience as a litigator in private practice. You've been a State Supreme Court Justice and you've been a high-level official in the Justice Department. I want': to ask a few questions about attorney-client privilege and I hope you can be of assistance. Isn't the attorney-client privilege, as generally defined, a privilege only that, number one, protects commu- 99 nication and, number two, protects communication between a client and his or her attorney? (11:00:42) Mr. HUBBELL. I believe that's correct, Senator. Senator HATCH. Isn't the privilege normally asserted in anticipation of litigation? Mr. HUBBELL. I believe that's correct. That's my experience. Senator HATCH. Wouldn't you agree that a document can be deemed to be protected by the attorney-client privilege only if it meets those basic requirements? Mr. HUBBELL. I'm going to only be able to give you the opinion based on Arkansas law, which I don't think is applicable here, but I believe you're essentially correct, Senator. Senator HATCH. It may have some applicability. Wouldn't you agree that a client-go ahead. Mr. HUBBELL, No, I'm fine. Senator HATCH. Wouldn't you agree that a client can waive the privilege either by intentionally waiving the communication or by disclosing it to a third party? Mr. HUBBELL. In Arkansas, you can have even an inadvertent waiver of the privilege, that's correct. Senator HATCH. That's probably true in a lot of other places, Mr. HUBBELL. Right. Senator HATCH. Let's examine the case of the Whitewater documents that the President has chosen to withhold based upon a claim of executive privilege. Now, Vincent Foster was a Government employee; right? (11:02:03)(tape #10012 ends) Mr. HUBBELL. That is correct. Senator HATCH. Therefore, while acting as Deputy White House Counsel, Mr. Foster could not or at least should not have acted as President Clinton's personal attorney'; isn't that right? Mr. HUBBELL. I don't know, Senator, whether there were restrictions on White House Counsel doing personal work for the President or not. It would seem to me that they are it's almost impossible not to have the White House Counsel at least involved in doing personal work because of all the disclosure laws and things of that sort. The CHAIRMAN. Senator Hatch, I do not mean to interrupt this line of questioning, but I think you're going to need a little more time to develop it, so why don't we stop at this point and we'll return to you. Senator MURRAY. Mr. Chairman, can I ask a process question? I'm just a little confused. The CHAIRMAN. Sure. Senator MURRAY. I'm trying to figure out, going back and forth here, who's yielding time. It was my understanding, correct me if I'm wrong, that somebody has to be here to yield time. The CHAIRMAN. I yielded my time to Senator Shelby. If you note, I took about 2 minutes and then the balance of my time went to Senator Shelby, The next person, Senator Shelby, had about a minute which he gave to Senator Hatch. So I see that Senator Hatch is pursuing a line of questioning that will take some time. That's why I suggested that rather than go further, because we understand a minute or 2 minutes over, but more than that we 100 should wait until we return back to this side. He will be the next person who we recognize. Senator MURRAY. I appreciate that. It's difficult to tell from down here whose time is being used so that we know--- The CHAIRMAN. It was on my time that Senator Shelby undertook the further questioning of Mr. Hubbell. Senator MURRAY. Am I correct that our rules state we have to be here to yield our time? The CHAIRMAN. That's correct, I was here. Senator MURRAY. Thank you. Senator SARBANES. I say to the Senator from the State of Washington the Chairman and I have discussed that prior to you putting the question, although it's a very good question. The way the rules are written at the outset, as happened, the Chairman gets a half hour, then the Ranking Member gets a half hour. Then it alternates, 10 minutes in each direction. If a Member gets his 10 minutes and doesn't want to use all of it, he can yield, assuming he's here, the balance of his time to another Member or to counsel to ask questions. Then it moves back and forth, Now, it appeared to get out of that framework, but I think we'll be back in that framework, and that's what was very specifically worked out in the resolution. Senator MURRAY. Thank you. The CHAIRMAN. Senator Sarbanes. Senator SARBANES. Senator Boxer. OPENING COMMENTS OF SENATOR BARBARA BOXER Senator BOXER. Thank you very much. I just have an observation before I get to my questions of Mr. Hubbell, and that is that we haven't used this video arcade at all today, and I understand that it's expensive to have it here. I hope that we can reassess that, maybe, because I think it's a question we ought to look at.