Senate Approves Court Battle for Clinton Papers

Rejecting a compromise put forth by President Clinton, the Senate voted along party lines Wednesday to ask the courts to enforce a subpoena for White House documents that investigators believe contain evidence of an alleged Whitewater cover-up.

By a vote of 51 to 45, the Senate agreed to take the unusual step, escalating a long-simmering constitutional confrontation that Republicans have represented as a matter of legal principle and Democrats have dismissed as partisan politics.

The purpose of the vote was to enforce a subpoena issued by the Senate Whitewater investigating committee for notes of a Nov. 5, 1993, meeting of seven lawyers representing the president.

The Senate committee decided to take the matter to court even though it did not oppose Clinton’s offer to turn over the notes voluntarily. The stumbling block was the refusal of two House committees also investigating the Whitewater case to embrace the same offer by Clinton.

Several weeks ago, in response to the Senate committee’s subpoena, the president offered to give notes of the meeting to the panel under the condition that it would not be construed as an agreement by him to waive attorney-client privilege in all instances related to Whitewater.

Although both the Senate committee and independent counsel Kenneth W. Starr agreed to the conditions laid down by the White House, the compromise ultimately fell apart because it was unacceptable to Republicans chairing House committees with jurisdictions over Whitewater.

Clinton’s critics used the circumstances to launch a broader attack on the president’s handling of the controversy over his investment in the Whitewater real estate venture while he was governor of Arkansas. Republicans, led by Senate Whitewater Committee Chairman Alfonse M. D’Amato (R-N.Y.), portrayed the president’s refusal to surrender the documents unconditionally as part of a pattern of deception on the part of the administration that is reminiscent of Watergate scandal of the Nixon presidency.

“Wholesale memory loss, evasive answers and claims of privilege against document production,” Sen. Richard C. Shelby (R-Ala.) observed. “Sounds strangely familiar, doesn’t it?”

Sen. Fred Thompson (R-Tenn.), who was an attorney on the Senate Watergate Committee in 1973, said Clinton--like Nixon--needs a reason for refusing to make the notes available.

“The president in this case simply doesn’t have” a reason, he said.

In response, Clinton also seized on the Watergate parallel. He said in an interview with The Times Washington Bureau that he is eager to turn over the notes and has sought ways to do so that would not involve waiving his attorney-client privilege.

“Nobody ever thought of asking President Nixon to give up his lawyer-client privilege,” Clinton said.

Clinton said he could not understand why some Republicans in Congress objected to an offer that would result in giving them the notes. “I am dying to give these notes up,” he said. “I never wanted to keep these notes.”

The president said the notes, when they are made public, will prove that no one representing him did anything improper.

In a letter to the White House made public Wednesday, House Banking and Financial Services Committee Chairman Jim Leach (R-Iowa) said he has “no desire for a constitutional confrontation” but expressed concern that the White House terms would impede his ability to investigate Whitewater.

Even as the Senate debated, White House counsel Jack Quinn met with Leach in an effort to resolve the dispute. Although the session failed to produce a compromise, Mark Fabiani, special White House counsel for Whitewater, indicated that the White House is close to achieving an agreement with Leach “that will make the Senate vote irrelevant.”

Democrats pleaded with the Senate to reject the motion on grounds that a compromise was within reach. Senate Minority Leader Tom Daschle (D-S.D.) described it as “an unnecessary, headline-seeking ploy for one purpose and one purpose only: to damage the president politically.”

But Republicans replied that they are tired of what D’Amato called “delay and obfuscation” by the White House. “Bill Clinton has used every tool in his grasp to stonewall this investigation,” said Sen. Rod Grams (R-Minn.).

As Republicans see it, the disputed notes made by then-White House counsel William Kennedy during the November meeting do not qualify for attorney-client privilege because not all of the lawyers in the room were representing Clinton in the case. Like Kennedy, several were government employees who technically do not represent the president personally.

Sen. Paul S. Sarbanes (D-Md.) cautioned that such a court battle might boomerang on the Senate. If the court rules in favor of the president, he said, it would set an unfavorable precedent for future battles between the two branches of government.