Probe Tests the Limits Of Presidential Privacy

ON Nov. 5, 1993, a cluster of aides and personal lawyers to President Clinton met for two hours to discuss the Whitewater case. William Kennedy, a then-associate White House counsel, scratched notes on a legal pad.

That meeting, and those notes, have caused the latest splash in this three-year-old ethics saga - one that sets up a constitutional clash between two branches of government that has faint echoes of Watergate.

The Senate panel probing Whitewater has subpoenaed the notes, but the president has refused to hand them over, claiming attorney-client privilege.

Unless the two sides settle the matter, the Senate is expected to vote tomorrow to enforce the subpoena - an act that would likely send the dispute to federal court.

Regardless of what's in the notes, this standoff has serious implications for American government.

At issue: where a president's rights as a private citizen end and his accountability as the nation's highest elected official begins.

By all accounts this particular case, and the larger question of presidential privacy, are a murky part of American law.

In 1974, President Nixon tried to prevent congressional investigators from winning access to tape-recorded conversations relating to Watergate. He argued that under a legally untried concept called ''executive privilege,'' the president is entitled to withhold certain information from Congress.

In its ruling on the matter, the United States Supreme Court did find that presidential executive privilege had a constitutional basis, but that it needed to be balanced against other interests. In the case of the Watergate tapes, Nixon lost.

Differences with Watergate

Today's debate is somewhat different. It centers on that now-famous 1993 meeting, where Clinton aides and lawyers discussed investigations into the Clintons' role in a botched Arkansas real estate venture known as Whitewater.

The Republican-led Whitewater committee wants to see Mr. Kennedy's notes because they may contain evidence that White House aides broke laws by pursuing confidential information about the investigations and plotting to frustrate them.

According to Dan Kahan, a University of Chicago law professor, the president does not have a strong argument to claim executive privilege in this case, largely because the meeting had little to do with his official duties. Instead, Mr. Kahan says, Clinton is focusing on the ''much stronger'' concept that conversations between lawyers and clients are protected, even if the clients are the president and first lady.

Although few presidents, including Nixon, have ever used this dictum to shield documents from Congress, Susan Fain, an American University law professor, says that if upheld, the idea would erect ''a firewall of separation between Bill Clinton as a human being and the office of president.''

Nevertheless, Professor Fain contends that a court ruling could go either way. The case for attorney-client privilege is shaky here, she says, because several people other than the president's immediate counsel attended the meeting, including then-White House personnel director Bruce Lindsey. The president himself was not there.

''If this had been a private meeting between Bill Clinton and his personal attorney for legal advice, there's no question that the discussion would have been privileged,'' says Ms. Fain. ''But because of the people present at the meeting, it is, in fact, a gray area.''

Although the White House claims to be cooperating fully with the investigation, and has turned over thousands of documents to the Whitewater Committee and to Kenneth Starr, the independent Whitewater prosecutor, some Republicans remain convinced of a cover-up akin to Watergate.

''There's almost the feeling out there they may be hiding something,'' Senate majority leader Bob Dole said (R) of Kansas said Sunday. ''What are they hiding? I don't know, but I wish they'd give the information to the committee.''

Indeed, the idea of a president withholding information from Congress has a distinctly Nixonian ring to it.

Smoking gun?

Yet Fain says the parallel is weak at best. She notes that President Clinton has offered to relinquish the notes as long as the committee acknowledges that the meeting was, indeed, privileged. But if Kennedy's notepad was the ''smoking gun'' in the Whitewater case, Fain asks, ''why would the administration be offering to release it?''

The White House maintains that although the notes are innocuous, protecting them is a matter of principle. Last week, Clinton said he doesn't want to become ''the first president in history'' to discard his right to attorney-client privilege.

While Republicans call this argument a stalling tactic, Democrats warn that if the president caves in to the committee, it would set a dangerous precedent.

Suddenly, they say, every private conversation between elected officials and their staffs and lawyers would be accessible to any overzealous congressional committee. Some Democrats have hinted at a filibuster of the subpoena vote.

''If that subpoena goes through,'' says Sen. David Pryor (D) of Arkansas, ''every comment you've ever made to your staff behind closed doors will be wide open to the public.''