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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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