Mimesis Law
17 September 2019

Schadenfreude, Ken Starr And Me

August 24, 2016 (Fault Lines) — I have long held the belief that the attorney-client privilege of a person subject to a criminal investigation should be considered inviolate unless the government can show an overwhelming case for piercing it. In that same vein, I detest the idea of prosecutors using the criminal process as a means to a political end even when the subject of the investigation is someone who holds political views different than mine.

And that takes me back to 1997, Ken Starr, then serving as Independent Counsel, the Whitewater investigation, the attorney-client privilege in criminal cases and then First Lady, Hillary Rodham Clinton.

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In the past, I have sat by designation with the Eighth Circuit Court of Appeals. I have enjoyed those times, particularly because I was once a clerk for a judge on that court and, secretly, because in the past I had hoped to be elevated to the Circuit. And thus it was in the early spring of 1997 I got the briefs for In re GRAND JURY SUBPOENA DUCES TECUM, 112 F.3d 910 (8th Cir. unsealed May 2, 1997).

After reading the briefs, I told my law clerks that the case was easy and the court should issue a short per curiam decision affirming the brilliant Susan Weber Wright’s opinion to tell Ken Starr and his young helpers to pound sand in their effort to subpoena the notes of White House lawyers that contained discussions between Mrs. Clinton, her personal lawyers and lawyers from the White House during several joint meetings. That was not to be.

On the day of oral argument, I took the bench with two great appellate judges, Judge Pasco Bowman (a genteel man with a 1000 horsepower intellect and once on the short list for the Supreme Court) and Judge Roger Wollman (one of the kindest, most humble and best appellate judges I have known).  To my astonishment, the courtroom was closed. Humorously, my law clerks, who elected to sit in the “cheap seats” rather than sit to the side of the bench where the appellate clerks sat, were accosted by security personnel asking for their identifications.

The crux of the issue was that Ken Starr had gone to the Arkansas federal:

District Court to compel production of two of the nine sets of documents identified by the White House. The first set of documents comprises notes taken by Associate Counsel to the President Miriam Nemetz on July 11, 1995, at a meeting attended by Mrs. Clinton, Special Counsel to the President Jane Sherburne, and Mrs. Clinton’s personal attorney, David Kendall. The subject of this meeting was Mrs. Clinton’s activities following the death of Deputy Counsel to the President Vincent W. Foster, Jr. The documents in the second collection are notes taken by Ms. Sherburne on January 26, 1996, during meetings attended by Mrs. Clinton, Mr. Kendall, Nicole Seligman (a partner of Mr. Kendall’s), and, at times, John Quinn, Counsel to the President. These meetings, which took place during breaks in and immediately after Mrs. Clinton’s testimony before a federal grand jury in Washington, D.C., concerned primarily the discovery of certain billing records from the Rose Law Firm in the residence area of the White House.

As noted, Judge Wright turned down the request. The appeal followed.

Suffice it to state that I thought both the White House and Mrs. Clinton had the attorney-client privilege and no sufficient showing (in fact, no showing at all) had been made to pierce the privilege. You can read my long dissent for my reasoning. Judges Bowman and Wollman did not agree, and reversed Judge Wright’s decision.*

Most people thought the Supreme Court would grant the certiorari petition that followed the Eighth Circuit’s ground breaking decision. Indeed, the first black law clerk on the Supreme Court**, William T. Coleman Jr., and former Secretary of Transportation under President Ford, and several other high ranking government officials, wrote in support of the petition:

[u]ntil the decision below, the amici had believed that the attorney-client privilege and the work product doctrine were available to government officials and government lawyers with respect to their conduct of official business, and that any qualification of these privileges with respect to grand jury or criminal trial subpoenas would at least be subject to the protective procedures set forth with respect to claims of Executive privilege in Nixon v. United States, such as a showing of particularized need and ex parte review of the subpoenaed information by a federal judge for relevance and admissibility into evidence.

Brief of William T. Coleman, Jr., et al., as amici curiae in Support of Petitioner at 4, Office of the President v. Office of Independent Counsel, 117 S.Ct. 2482 (1997) (No. 96-1783) (citation omitted).

However, the petition was denied without comment. Office of President v. Office of Indep. Counsel, 521 U.S. 1105 (1997). I was stunned.

Because Starr was overzealous, as many inexperienced prosecutors can be, in my opinion, he harmed not only the office of the President of the United States, but he impaired the rights of Mrs. Clinton, who was (and is) despised by many Republicans, to consult counsel when confronted with a high profile criminal investigation. That was a very bad thing for our country and our law:

In a sealed decision, the District Court refused to compel production of these two sets of notes. On April 9, 1997, the Eighth Circuit, on appeal from the sealed decision, ruled two to one that notes taken by White House attorneys in meetings with the First Lady regarding the aftermath of Vincent Foster’s death and her grand jury testimony are not protected by the attorney-client privilege and must be turned over to the grand jury. Despite widespread speculation that the Supreme Court would and should take the case, the Supreme Court denied certiorari without comment just two months later. Although the notes have already been turned over to the Independent Counsel, they have not lived up to the expectations of those who believed the notes in question contained some sort of “smoking gun.” Independent Counsel Kenneth Starr has not only failed to indict anyone based on the contents of these notes, but he has also dismissed the grand jury which heard Hillary Clinton’s testimony. Far more significant, however, is the impact the Eighth Circuit’s decision will have beyond the current Whitewater investigation.

Lisa E. Toporeka, “Bad Politics Make Bad Law”: A comment on the Eighth Circuit’s Approach to the Governmental Attorney-Client Privilege, 86 Geo. L.J. 2421 (July, 1998).

I see now where Mr. Starr has been fired as President and Chancellor of Baylor University because of a rape scandal that included, among others, two former football players who were convicted of the crime. Just this last week he was also ousted from his position as Professor of Constitutional Law at that University’s law school.

I must confess that I feel a sense of Schadenfreude– pleasure derived by someone from another person’s misfortune. Does that make me at nasty and low-minded person? The answer is certainly “yes.” But legal realism requires, if nothing else, admission of one’s own faults. And, so there you have it.

Richard G. Kopf
Senior United States District Judge (Nebraska)

*The four judges involved in this case, Wright, Bowman, and Wollman and myself, were appointed by Republican Presidents.  For what it is worth, I never saw nor perceived the slightest indication that Judges Bowman and Wollman were in any way motivated by the fact that Mrs. Clinton, and her husband, the President, came from the party opposite.

**He clerked for Justice Frankfurter in 1948.

8 Comments on this post.

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  • repenting lawyer
    24 August 2016 at 9:35 am - Reply

    Sorry Judge but I share that vice of a delight in the fall from grace of the excessively good, and Starr is an easy case. Still miss your presence on 8th Cir. but then Bowman was there because of a similar story. Judges may not in the main be influenced by party affiliation in the federal system, but politics has a lot of impact on who sits where.

    • Richard G. Kopf
      24 August 2016 at 10:22 am - Reply

      repenting lawyer,

      Judge Bowman is certainly conservative. One of his former law clerks–Ann Coulter–is very, very conservative and very, very well known. See, e.g., http://www.anncoulter.com/my_life.html

      But it’s also true that Judge Bowman, like you, was a distinguished academic. Faculty, University of Georgia School of Law, 1964-1970; assistant professor, 1964-1965; associate professor, 1965-1969; professor, 1969-1970; Dean/professor of law, Wake Forest University School of Law, 1970-1978; Visiting professor, University of Virginia School of Law, 1978-1979; Dean/professor of law, University of Missouri, Kansas City, School of Law, 1979-1983.
      I always found the judge to be a pleasant and fair-minded person interested in issues and not personalities.

      All the best.

      Rich

  • Anonymous
    24 August 2016 at 10:07 am - Reply

    The wheels of justice can grind painfully slow. But they do grind, and we all get ours in the end.*

    Maybe that’s why I’m so neurotic.

    * I had an older friend, also a lawyer, who once told me that he used to believe that people who do bad things get theirs, but that after many years of living he noticed that it was the opposite way around. I told him I thought he was cynical. He wryly smiled, and said “you’ll see.” I still think he’s wrong, I certainly hope so.

    • Richard G. Kopf
      24 August 2016 at 10:39 am - Reply

      As my dear friend and colleague, Chief Judge Laurie Smith Camp, reminds me,

      “In the words of Clint Eastwood in ‘Unforgiven,’
      – ‘We all have it coming.’ In the words of Dustin Hoffman in
      ‘Papillon’ – ‘Blame is for God and small children.'”

      All the best.

      RGK

  • repenting lawyer
    24 August 2016 at 4:08 pm - Reply

    No slight to Judge Bowman intended, but I thought the original plan was to nominate GC of Hallmark, who had some relationship with Planned Parenthood. Helmet objected and Bowman was appointed to assuage him Years ago at an Ad Lw Conference in DC one of the questions asked why the Courts deferred to agencies whose members were just friends of Senators . The DC Cir judge to whom the questions directed responded,How do you think we get our jobs.” An exaggeration, but with a lot of truth in it.

    • Richard G. Kopf
      24 August 2016 at 5:12 pm - Reply

      repenting lawyer,

      Gosh, I don’t know. You may well know much more than I do on this (and many other things). I do know, however, that Judge Bowman was one of the super-smart conservative academics that the Reagan Justice Department’s legal policy folks liked to nominate to appellate seats.

      All the best.

      Rich

  • Patrick
    25 August 2016 at 11:48 am - Reply

    Interesting to see the names of the lawyers on the brief for the OIC–John Bates, subsequently appointed to the DC federal District Court, and Brett Kavanaugh, subsequently appointed to the Court of Appeals for the D.C. Circuit. With Starr a former DC Circuit judge & Solicitor General, there was certainly a lot of “pedigree” on the brief …

    • Richard G. Kopf
      25 August 2016 at 1:09 pm - Reply

      Patrick,

      All true. Counsel for the other side had good pedigrees as well.

      All the best.

      RGK