July 19, 1995 - Part 2
July 19, 1995 - Part 2
(11:15:52) Mr. HUBBELL. That's correct. Senator HATCH. Now, wouldn't you agree that Vincent Foster's handwritten notes were not "communications" between Mr. Foster and the President? Mr. HUBBELL. Which notes are you talking about? Senator HATCH. Let me put up--why don't we put up Exhibits 87, if we could go to 93--87 and 93 are two good illustrations and maybe 229. Let's start with 87. Mr. HUBBELL. Yes. 104 Senator HATCH. You would agree that that's not a communication? Mr. HUBBELL. I cannot tell from looking at this, Senator, but I have a similar note, and that was a meeting that was held back during the transition as part of a checklist of a lot of things to be Senator HATCH. Would it be fair to say you do not believe that .was a communication between Mr. Foster and the President? Mr. HUBBELL. And the President, no, but it could be a reflection of a meeting of lawyers about Senator HATCH. Sure, but it's his own personal notes is what we're establishing? Mr. HUBBELL. Yes, but they could be privileged. Senator HATCH. Let's go into that. Number 93, wouldn't that be the same? There's just one note on there. Everything else is redacted. Let me take one other, 229. The CHAIRMAN. I think it's fair to say that the Committee will, at least it is my inclination to, look into the question that has been raised regarding the production to the Committee of pages and pages of blank documents or documents that have been covered over, whited out. Senator HATCH. Let me get into that, Mr. Chairman. The CHAIRMAN. But that will be of interest, I believe, in the future, to this Committee. Senator HATCH. What I'm trying to establish here now is that these three documents with Mr. Foster's notes were not communications between Mr. Foster and the President? Mr. HUBBELL. They don't appear to be communications between Mr. Foster and the President. They appear to me to be minutes of a meeting with some other people. I don't know who was there. Senator HATCH. Isn't it true that if a client releases documents, even assuming Mr. Foster was a client, and I don't think you can the President was a client of Mr. Foster's, but if the client releases information to a third party, even if the documents are in part redacted, that that privilege may be waived with respect to the entire document? Mr. HUBBELL. I don't know with respect to the entire document. It may be waived as to the extent of the issue, Senator. That's my understanding of the privilege, but, again, I haven't researched. attorney-client privileges in a long time. Senator HATCH. Isn't it possible that the President believed he may get some sort of an advantage if he released portions of the documents but not others? Mr. HUBBELL. I don't know, Senator. Senator HATCH. Isn't it true that the President probably didn't think it would be advantageous to release the documents? If he didn't think it would be advantageous, he wouldn't have released them. Wouldn't you agree with that? Mr. HUBBELL. Senator, I really don't know what the thought process is of the President or his advisors. Senator HATCH. Mr. Ben-Veniste raised the attorney work product privilege. Doesn't the work product privilege, which is different from the attorney-client privilege, protect an attorney's written work and his thoughts concerning a case involved in litigation? 105 Mr. HUBBELL. That's usually the case. Senator HATCH. Isn't it the case that the privilege can be overridden "for good cause" such as an inability to acquire the documents from any other source? Mr. HUBBELL. As for my understanding of the Federal Rules of Civil Procedure, that is correct. Senator HATCH. That is correct. Now, since Mr. Foster's notes do not qualify as protected attorney-client communications, and I don't think they do, then do you agree that at best they can qualify as work product, as an attorney work product? Mr. HUBBELL. I don't know whether they qualify for the attorney-client privilege or not, but they could qualify for the work product privilege. Senator HATCH. Couldn't the work product privilege be overridden if the Committee cannot obtain these materials in any other way? Mr. HUBBELL. A court could make that determination, or it could go the other way. Senator HATCH. If you wanted to keep a document privileged, you ordinarily wouldn't release it to the press, would you? I think that goes without saying. Mr. HUBBELL. That goes without saying. Senator HATCH. You wouldn't release a portion of that document to the press, would you? Mr. HUBBELL. Senator, I have a bias about releasing anything to the press. Senator HATCH. My point is, as a good lawyer, you wouldn't do that if you wanted to retain the privilege? Mr. HUBBELL. It would be risky, yes. Senator HATCH. That's right. Finally, if you wanted to keep a document privileged, you wouldn't want anyone other than the lawyer or the client to have possession of it, would you?