August 9, 1995 - Part 4
August 9, 1995 - Part 4
(13:10:14) What Vince and I were doing in the White House Counsel's Office were representing him in his official capacity, not his personal capacity. But there are some things, such as filing disclosure forms, creating a blind trust, filing your tax returns which become public. Those are official things for a President but you need your personal files to do that, your bank account, your insurance policy, what real estate you own, so in that area, you need personal files to help him fill an official function. They still remain personal files, They have nothing to do with the transaction of Government business, so you use those files for this official function, and then when the function is over, as it was in July 1993, and unfortunately Vince was also dead in July 1993, You send them back. You send them back to the President and the First Lady, or to their private lawyers, and that's what we did. That's the way I think a sensible lawyer should act. But at no time were we the President's personal lawyers, as Senator Shelby rightly pointed out. I was on the Government payroll, I was a Government lawyer, but my role was representing the President in his official capacity, 1256 Senator MOSELEY-BRAUN. Except that, Mr. Nussbaum, I think one of the problems here is the contradiction. You were making decisions about papers and claiming the privilege which would attend to a personal connection between you and the President and the First Lady, even though you were making those decisions in your official capacity. And so the contradiction and I think the place where we run into the problem is perhaps the answer would have been to have his private, personal counsel there to say, well that piece of paper is my piece of paper and the other piece of paper is your piece of paper, and I claim the privilege for this piece of paper. Mr. NUSSBAUM. That's one possible solution, Senator. Senator MOSELEY-BRAUN. I'm not trying to make this overly bureaucratic, but I Mr. NUSSBAUM. No, no, I understand, and I may not be clear, Senator myself. I may be muddling certain things when I talk to, you, but the President, in his official capacity, has an attorney-client privilege, in his official capacity, also has a work product privilege, and certainly has executive privilege in his official capacity. Now his private papers, I wasn't exercising privilege with respect to those private papers. All I was doing was assuring that they go to him and his private lawyers so they can determine whether or not privilege was being exercised. I was acting as a lawyer should act after a colleague dies in the possession of a client's personal papers. When a client dies, and the rules talk about this, ethical consideration 4.6 of the New York State Code of Professional Responsibility talks about this. It says, after a client dies, excuse me, after a lawyer dies, it's the obligation of other lawyers to see to it that a client's confidence is still protected and his personal papers should basically be sent to the client or to a new lawyer. All I was doing was acting in accordance with the rules that apply to all lawyers, whether they're personal lawyers or Government lawyers. Now I know, Senator, as you've been saying, that sometimes these lines are hard to draw, especially when you're dealing with the President of the United States. But what good lawyers do all the time is try to draw those lines and try to do them the right way. That's what I tried to do in July 1993. And, as I said, I know some of you may disagree, you disagreed with me last year, I said, looking back, I think I did the right thing. I have no regrets. Senator MOSELEY-BRAUN. Well, I would just in closing say that there's an old expression that we're called on sometimes to be the CDLS, and that's the Committee to Draw the Line Somewhere, and it seems to me that the lines in these kinds of situations would be better drawn prospectively, proactively, so that we don't wind UP with another set of multimillion dollar hearings over whether Or not someone properly handled personal versus official versus extra-' neous material in any of the high offices in Government, because there's so many important issues going the public trust and the like that are involved here. We ought to have the sense to, I think, act before these problems crop up again. Mr. NUSSBAUM. I agree with that observation, Senator. The CHAIRMAN. Mr. Chertoff. Mr. CHERTOFF. Thank you, Mr. Chairman. 1257 Mr. Nussbaum, I want to move away from the philosophy and back to the facts. We had your testimony a little earlier in which you confirmed for us the fact that it was Ms. Thomases who raised with you, on the 22nd of July, that she understood people had a disagreement or a concern about the manner in which the document review would proceed, and I think once you confirmed that for us, it was very useful then to go back to the record and learn that the three people Ms. Thomases had talked to of consequence in the White House before you were the President, the First Lady, and Maggie Williams. So you can draw an inference from that.