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Everyone seems to be missing the point in the debate over whether the
late White House Deputy Counsel Vincent Foster’s discussions with his
attorney, James Hamilton, are still privileged.

The Supreme Court took up the issue earlier this week. The topic has
been the focus of talking-heads shows on TV for days. And lots of
arguments in favor of the public’s right to know have been forwarded.
Nevertheless, the most persuasive point has thus far been obscured by a
press which has never seemed much interested in the truth with regard to
Foster’s life, and still mysterious death.

Once again, I take you back to a White House document that has
received far too little attention from congressional investigators, the
media and Independent Counsel Kenneth Starr, the man now urging the
Supreme Court to order the release of Hamilton’s notes of a discussion
he had with Foster days before he was found dead in Fort Marcy Park on
July 20, 1993.

The document is the “Sherburne memo,” which I have written about
extensively in the past. Authored by White House Associate Counsel Jane
Sherburne, it listed 39 scandals consuming the White House by December
1994. Among them was the Foster death. Besides being the first tip-off
that the White House was watching me, my organization and our reporter
Christopher Ruddy, the only journalist covering the Foster case
full-time, the Sherburne memo also documented attorney Hamilton’s
unusual relationship with Clinton.

In the memo, Hamilton is referred to as a White House “surrogate.”
Surrogate, in my dictionary, means “substitute.” In other words,
Hamilton was not simply representing Foster, he was representing the
White House — and, given his legal positions ever since, still is.

So, not only is his official client in the case dead, his unofficial
client — the White House — is the very target of the investigation
Starr is conducting. If I had been arguing this case before the Supreme
Court, or before the TV cameras in the last few days, I would have made
this point forcefully.

In other words, Hamilton has one big conflict of interest in arguing
that his sole purpose is protecting the memory of Vincent Foster and the
interests of his family. He is a political partisan — in fact, he was
brought in to represent Lisa Foster, after her husband’s death, by the
White House itself.

Clearly, this is no ordinary case of attorney-client privilege, as
some — especially in the media — have made it out to be. Which brings
me to some of the unbelievably slanted and biased reporting on this
subject.

Here’s the way ABC News spun it in what was billed as a straight news
story — in fact, its lead story Tuesday: “By asking the Supreme Court
to force the late Vincent Foster’s attorney to surrender three pages of
notes, Kenneth Starr is tinkering with the most sacred tenet of his
profession.

“Under the protection afforded by attorney-client privilege, perhaps
the most essential component of the American legal system, anything and
everything that transpires between the two parties remains in strict
confidence.

“A favorable ruling for independent counsel Starr “would be the first
real interference in this privilege in hundreds of years,” says ABC News
Legal Analyst Jeffrey Toobin. …”

If I tried to write a more dishonest, one-sided account of this
debate, my 20 years of journalism experience would be insufficient to
the task. Imagine quoting your own expert to make your point!

The fact of the matter is that even the government’s most
confidential documents — FBI files — become public when the subject of
those files dies. Why should attorney-client privilege work any
differently? And, even more importantly, why should the press — whose
sworn duty is busting down government secrets — suddenly find itself in
the role of protecting them?

It says a lot about the Foster case. His ghost continues to haunt us.
And it will as long as so many unanswered questions remain surrounding
his untimely death.

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