Justices Delay Request For Foster Attorney's Notes
WASHINGTON (AllPolitics, March 30) -- The Supreme Court Monday delayed efforts by Independent Counsel Ken Starr to obtain notes taken by the lawyer for White House aide Vincent Foster shortly before Foster's suicide in 1993.
The court decided to hear arguments from attorney James Hamilton that the notes are protected by attorney-client privilege even after Foster's death.
Hamilton also argues the notes are a reflection of his judgment about the matter and are protected as "work product."
The notes were taken by Hamilton July 11, 1993, during a meeting with Foster about the White House travel office firing investigation.
Foster committed suicide nine days later.
Whitewater investigators say they are entitled to Hamilton's notes since Foster can no longer be called as a witness in the investigation.
Starr wants the notes to determine if presidential aides lied about any role Hillary Rodham Clinton played in the purge of the travel office staff. The first lady has said she had no role.
The independent counsel urged the court to let stand a lower court ruling saying the notes are not necessarily protected by attorney-client privilege.
If the court had ruled in Starr's favor, he could have asked a federal judge to decide immediately if the notes should be surrendered to the grand jury that subpoenaed them in December 1995.
Now, Starr has to wait on the Supreme Court decision not expected until 1999.
A federal judge had ruled the notes protected by attorney-client privilege. But a federal appeals court reversed the ruling, saying that since Foster is no longer alive the notes are not necessarily protected.
The appeals court said such notes can be given to prosecutors
if they "bear on a significant aspect of the crimes at issue" and
other reliable evidence is scarce."
It ordered a judge to study the notes to decide if they should be given to Whitewater prosecutors.
In his Supreme Court appeal, Hamilton said the appeals court ruling
"defeats the fundamental purpose" of the attorney-client privilege.
"All citizens, including the elderly and seriously ill, still
have a right to talk to an attorney in confidence," Hamilton said.
Hamilton also pointed out that people may hesitate to talk to their lawyers about criminal matters involving family or close friends if those statements can be disclosed after their own death.
Starr asked the justices to reject Hamilton's appeal saying,
"This court's review would further delay an important grand jury
investigation."
Starr claimed Foster "would have been an important witness" in the travel
office investigation, and the notes would provide information that Foster would have given if he were still alive.
The appeal by Hamilton was supported by the American Bar Association, the National Association of Criminal Defense Lawyers and the National Hospice Organization in friend-of-the-court briefs.
The Associated Press contributed to this report.
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