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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.
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July 19, 1995 - Part 2
(11:05:16) The CHAIRMAN. If I might, with respect to addressing that Senator BOXER. With respect to the rest of my time I'll yield to my friend. The CHAIRMAN. Why don't you continue and I'll respond later. Senator BOXER. Thank you. Mr. Hubbell, I want to take you back to what you described as one of the worst, if not the worst, nights of your life because I think it's important for me to understand what people were focused on that night and I think I do understand it, but I think the American people should understand it. You were one of the closest friends of the Foster family; is that correct? Mr. HUBBELL. That is correct. Senator BOXER. Your wife as well; is that correct? Mr. HUBBELL. That is correct. Senator BOXER. You knew his family, his sisters; is that correct? Mr. HUBBELL. I worked with Sheila. Sharon lived down the street from me in Little Rock. I've been close to the family for a long time. Senator BOXER. It seemed to me, from your description of the events, you were the one they turned to in this moment of tragedy and need and you went with the sisters to the home of Mrs. Foster, 101 and you described the situation there, Would that be an accurate assessment of mine, that they turned to you to help them through this? Mr. HUBBELL. Yes, yes, Senator, that is correct. It was a duty I was happy to take on. Senator BOXER. When you got there, you tried to break the news to Mrs. Foster, but you were not able to do that, and the Park Police did that; is that correct? Mr. HUBBELL. That is correct. They said they had to do it. Senator BOXER. They went into the home first? Mr. HUBBELL. That is correct. Senator BOXER. When you went into the home, did the Park Police rush up to you and say we have to seal off this home, we have to search this home for a note, we have to search this home for other documents which could lead us to what really happened here? Did anyone in the Park Police say that to you? Mr. HUBBELL. No, they did not. Senator BOXER. When you were in that home, you testified that there were many other people associated with the White House who were at the home that evening. Mr. HUBBELL. That's correct. A lot of people who were close to Vince or Lisa came over that night, as is normally the case in such a tragedy. Senator BOXER. At any time did you or anyone else from the White House or associated with the White House say that you needed to go off to a room and talk about what the next steps were, what to do about Vince Foster's office, what to do about the papers that he may have? Was there any such meeting or conversation on the night of this tragedy? Mr. HUBBELL. No, there was no such conversation. There would not have been room to do it if we wanted to. The house was small, and we were all congregated on the first floor. No one went up, except to be with Lisa, to their bedroom upstairs, Senator BOXER. So you would say that-when you say that that night, although-there were how many people from the White House? I think you've testified, I thought, to about a half dozen. Were there at least that many? Mr. HUBBELL. At least that many. I'm sure there were more, and the days blend together, but that night, I know the President came. Mr. Gergen came. Mack was there. David Watkins was there. Bruce Lindsey was there, but I'm sure there were other people there. We were-the room was full. Senator Pryor was there and -Barbara, Beryl Anthony got there later, the kids got there. It was El typical scene and as I said, the phone was ringing off the wall. People were calling from Little Rock, had seen it on CNN in total disbelief, like the rest of us. Senator BOXER. Would you say, then, that the last thing on people's minds who were there to comfort the Foster family and comfort each other was what to do with sensitive papers or documents? That, as far as you know, there wasn't even such a conversation that night although there were many people there from the White House? 102 Mr. HUBBELL. As far as I know, there was never any kind of conversation like that. The only conversation about any piece of paper would have been is there a note, has anybody seen a note? Senator BOXER. The Park Police never said to you let's close off this house, let's seal it because we're going to look for a note or other documents? Mr. HUBBELL. No, they did not. Senator BOXER. Did the Park Police ever tell you that they wanted to seal off Vince Foster's office and look for any type of note or any clues to a suicide? Mr. HUBBELL. No, they did not. Senator BOXER. Isn't it a fact, I guess-the Park Police have a right to be upset if they feel they were mistreated and I look forward to hearing their comments, but isn't it true that they could have gotten a search warrant or a subpoena if they wanted it? Didn't they have the ability to do that? Mr. HUBBELL. I believe that is correct. I had a discussion with them about jurisdiction the next day, so I know they had the authority.
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July 19, 1995 - Part 2
(11:10:42) Senator BOXER. Thank you. I yield my remaining time to counsel. Mr. BEN-VENISTE. Thank you, Senator Boxer. Mr. Hubbell, I'd like to ask you about a comment contained in a question put to you by Senator Shelby. He asked you whether Mr. Nussbaum and his involvement in determining the procedures to be used in searching for the note in Mr. Foster's office was a situation akin to the fox guarding the hen house. Now, let me ask you, sir, in connection with the suicide of Vincent Foster, how, in your mind, would Mr. Nussbaum be considered the fox? Mr. HUBBELL. I don't consider Mr. Nussbaum the fox. I think, to elaborate, Senator Shelby, the files that would have been in Vince's office were the files of the White House Counsel. They were Bernie's files as well, except to the extent of Vince's personal files. It's like a law firm. The law firm's files belong to the firm, not to any one individual in the White House. Mr. BEN-VENISTE. Now, with respect to Mr. HUBBELL. I was trying to talk about that. Senator SHELBY. I wonder if counsel would yield for 2 seconds. Mr. BEN-VENISTE. Certainly, Senator. Senator SHELBY. Maybe he wasn't the fox watching the hen house. Maybe he was the tiger guarding the door, at least that was the perception that a lot of people had of him. They were intimidated by him. Mr. BEN-VENISTE, Let me ask you about the concept of the tiger in connection with attorneys and sensitive information they re-, ceive. Are you aware of any ethical restrictions on attorneys from disclosing confidential information provided by a client? put aside whether it's the President of the United States who's the client. Mr. HUBBELL. There are ethical restrictions, and the privilege is the client's, not the attorney's, to waive. Mr. BEN-VENISTE, What are the consequences for an attorney who might, without the client's permission, disclose confidential information, if you know? 103 Mr. HUBBELL. I presume back in Arkansas that attorney could be disciplined by the Bar Association. Mr. BEN-VENISTE. Up to the penalty of being disbarred, losing his right to practice law if it were egregious? Mr. HUBBELL. If it were egregious, yes. Mr. BEN-VENISTE. Now, Senator Hatch asked you some questions about the attorney-client privilege and asked whether that privilege was limited to communications from the client. I ask you whether there is such a thing as the work product privilege associated with the attorney-client privilege? Mr. HUBBELL. Yes, there is a work product privilege in connection with litigation, yes. Mr. BEN-VENISTE. What does that relate to? Mr. HUBBELL. Work product produced by the lawyer in connection with the client's business. Mr. BEN-VENISTE. You've indicated, I think, with respect to attorney- client privilege that one of the ways that that privilege is normally asserted is in connection with a litigation. Let me ask you, if there is no litigation pending and some third party wishes to see the attorney-client privileged materials in an attorney's office, does that mean that the attorney-client privilege doesn't hold? Mr. HUBBELL. I don't believe so. The analogy I try to make to this circumstance is if the Justice Department or the FBI were to try to come into a law firm and ask for clients' records or the law firm's records, You would be in a position of having to still claim the privilege for your client unless it was waived. I believe that occurs a lot of times within law firms. Mr. BEN-VENISTE, I see that my time is up now and there may be some more questions along these lines, if I may, a bit later. Thank you, sir. Thank you, Mr. Chairman. The CHAIRMAN. Thank you. Senator Hatch, Senator HATCH. Thank you, Senator D'Amato. Mr. Hubbell, again, let's return to the questions exploring attorney-client privilege, because I think it's good to get these out of the way. You stated that attorney-client privilege, as a general rule, applies when there is one, a communication that, two, is between the attorney and the client. Now, let me just continue along that line. I asked you, then, if because of the fact that Mr. Foster was a Government employee, and while acting as Deputy White House Counsel, he could not and should not have acted as President Clinton's personal attorney, and you weren't sure whether he could or couldn't, if I recall correctly?