WHITEWATER SHOWDOWN

By John Greenwald

WHAT ARE BILL AND HILLARY CLINTON trying to hide? For three years the First Family has virtually invited that question, and thereby helped keep the Whitewater affair bubbling, by providing information only grudgingly. Never mind that they have, ultimately, turned over some 50,000 pages of evidence to congressional Whitewater investigators. The perception of stonewalling persists, and took on new life last week when the White House became embroiled with Congress in the bitterest showdown yet over Whitewater materials.

The latest fireworks exploded after the Senate Whitewater committee set a deadline of 9 a.m. on Dec. 15 for former White House attorney William Kennedy III to surrender notes taken during a 1993 meeting between White House lawyers and personal lawyers for the President. The Administration, insisting the notes are protected by attorney-client privilege, said Kennedy could not comply with the subpoena (which, in any case, was never properly served, as Kennedy's lawyer, Paul Castellitto, informed committee counsel Michael Chertoff in a phone conversation that became a shouting match). The ultimate confrontation, a full Senate vote on whether to take the matter to court, could still be avoided: later on the day of the deadline, the White House said it was willing to drop all but one of its unresolved conditions for releasing the notes.

The Administration has long described the two-hour session at which Kennedy took his notes as an innocent meeting held to turn over legal responsibility for handling Whitewater to the private lawyers. Says Clinton: "I believe that even the President ought to have a right to have a confidential conversation with his minister, his doctor, his lawyer." Republicans, however, suspect the notes may show the lawyers were planning to use confidential government information on two pending Whitewater investigations to try to hinder the probes. As the deadline neared, the White House offered a compromise, agreeing to relinquish the notes under certain conditions. But a bitterly divided Senate committee voted 10 to 8 along party lines to reject the deal and seek enforcement of the subpoena. Soon afterward, the White House signaled that only one of the disputed conditions really mattered: other investigative bodies, as well as independent counsel Kenneth Starr, must agree that even if the notes were turned over, the White House could still assert attorney-client privilege with respect to other conversations between the Clintons and their lawyers.

At week's end, in an interview with the Associated Press, committee chairman Alfonse D'Amato vowed to continue pressing Clinton to release the notes, but allowed that he would be willing to write to Starr to tell him, "We do not feel that there would be any waiver of any privilege" and to urge Starr to "accept the same position."

The confrontation carries political risk for both parties. The danger for Clinton is that a public grown weary of Whitewater could find its interest rekindled and decide that the President is concealing something, at a time when his approval ratings are surging. The Republicans risk getting the notes only to find nothing incriminating in them. That would make D'Amato and friends look like overzealous bullies.

The politically charged standoff was the most dramatic but hardly the only Whitewater development last week. Earlier, D'Amato confronted Margaret Williams, Hillary Clinton's chief of staff, with discrepancies between her testimony and that of Robert Barnett, the Clintons' former personal lawyer. For example, Williams did not recall having arranged for Barnett to come to the White House on July 27, 1993, to examine files taken from the office of former deputy White House counsel Vincent Foster, who had committed suicide seven days earlier. But Barnett told Senators that Williams personally had set up his visit.

D'Amato also described a letter from Clinton's personal lawyer David Kendall as a "smoking gun" because it led investigators to conclude that during the 1992 presidential campaign, Foster had removed Whitewater-related files from the Little Rock, Arkansas, law firm where Foster and Hillary Clinton were partners. Foster gave the files to Webster Hubbell, another partner, who stored them in his Washington home while serving as an Associate U.S. Attorney General. But Kendall testified that Foster took custody of the files in order to answer Whitewater questions from reporters and others during the election.

By far the greatest threat to the President, however, is the showdown over Kennedy's notes, even though legal experts tend to side with the White House. Says Stephen Gillers, a professor of legal ethics at New York University Law School: "I would be reluctant to go into court if I were the Senate committee, because I think I would lose." Right or wrong, however, just by pressing his case the President risks losing in another forum, the court of public opinion.

--Reported by J.F.O. McAllister and Viveca Novak/Washington

With reporting by J.F.O. MCALLISTER AND VIVECA NOVAK/WASHINGTON