IN RE: GRAND JURY SUBPOENA DUCES TECUM
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-4108
___________
*
In re: Grand Jury Subpoena * Appeal from the United States
Duces Tecum * District Court for the
* Eastern District of Arkansas.
*
___________
Submitted: February 13, 1997
Filed: April 9, 1997
Amended and Unsealed: May 2, 1997
___________
Before BOWMAN and WOLLMAN, Circuit Judges, and KOPF,(1) District
Judge.
___________
BOWMAN, Circuit Judge.
The Office of Independent Counsel (OIC) appeals from an order
of the District Court denying the OIC's motion to compel the
production of documents subpoenaed by a federal grand jury. We
reverse and remand.
I.
The task assigned to Independent Counsel Kenneth W. Starr is
to investigate and prosecute matters "relating in any way to James
B. McDougal's, President William Jefferson Clinton's, or Mrs.
Hillary Rodham Clinton's relationships with Madison Guaranty
Savings & Loan Association, Whitewater Development Corporation, or
Capital Management Services, Inc." In re Madison Guar. Sav. & Loan
Ass'n, Div. No. 94-1, Order at 1-2 (D.C. Cir. Sp. Div. Aug. 5,
1994). Mr. Starr also is charged with the duty of pursuing
evidence of other violations of the law developed during and
connected with or arising out of his primary investigation, known
generally as "Whitewater." See id. See generally United States v.
Tucker, 78 F.3d 1313 (8th Cir.), cert. denied, 117 S. Ct. 76
(1996).
On June 21, 1996, as part of its investigation, the OIC
directed to the White House a grand jury subpoena that required
production of "[a]ll documents created during meetings attended by
any attorney from the Office of Counsel to the President and
Hillary Rodham Clinton (regardless whether any other person was
present)" pertaining to several Whitewater-related subjects.
Subpoena Rider at 1. The White House identified nine sets of notes
responsive to the subpoena but refused to produce them, citing
executive privilege, attorney-client privilege, and the attorney
work product doctrine.
On August 19, 1996, the OIC filed a motion before the 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.
The White House abandoned its claim of executive privilege
before the District Court, relying solely on the attorney-client
privilege and the work product doctrine. Mrs. Clinton also entered
a personal appearance through counsel in the District Court and
asserted her personal attorney-client privilege. The District
Court found it unnecessary to reach the broadest question presented
by the OIC, whether a federal governmental entity may assert the
attorney-client privilege or the work product doctrine in response
to a subpoena by a federal grand jury. Instead, the court
concluded that because Mrs. Clinton and the White House had a
"genuine and reasonable (whether or not mistaken)" belief that the
conversations at issue were privileged, the attorney-client
privilege applied. Memorandum Opinion and Order at 20. In
addition, the court held that the work product doctrine prevented
disclosure of the notes to the grand jury. See id. at 22.
The OIC appealed, and we granted expedited review. Mrs.
Clinton moved to intervene formally, and we granted her motion.
The case was submitted following oral arguments in a closed
session. The District Court did not find it necessary to examine
the disputed materials in camera, see id. at 18 n.10, and neither
do we.(2)
At the request of the White House, and in order to preserve
the secrecy of the grand jury's proceedings, we filed our opinion
under seal on April 9, 1997, intending to publish a redacted
opinion shortly thereafter. Since we filed our opinion, however,
press reports have related some of the substance of our decision.
Believing that these disclosures have portrayed the White House in
an unfairly negative light, the White House and Mrs. Clinton moved
this Court to publish its opinion and to unseal the briefs and
appendices filed in this Court, and the OIC joined in the motion.
The motion is granted. Accordingly, this opinion, as amended,
together with Judge Kopf's dissent, is released for publication,
and the briefs and appendices are ordered unsealed.
II.
We first consider our jurisdiction to entertain this appeal.
An order of a district court denying a motion to quash a grand jury
subpoena--that is, an order requiring compliance with the
subpoena--is not immediately appealable. See Cobbledick v. United
States,
309 U.S. 323, 327-28
(1940). But see United States v.
Nixon,
418 U.S. 683, 691-92
(1974) (determining that, in unique
context of case, President could appeal without first being cited
for contempt). This case presents the opposite situation: an
order refusing to require compliance with a subpoena. An order
granting a motion to quash a subpoena is an appealable order,
either under 18 U.S.C. 3731 (1994) (permitting government to
appeal from an order "excluding evidence . . . in a criminal
(2) We wish to commend the parties on the quality of their
briefs and oral arguments despite the expedited appeal process.
proceeding"), or under 28 U.S.C. 1291 (1994) (permitting appeals
from "all final decisions of the district courts"). See In re
Grand Jury Subpoena (Kent), 646 F.2d 963, 967-68 (5th Cir. Unit B
June 1981); In re Grand Jury Empanelled Feb. 14, 1978 (Colucci),
597 F.2d 851, 854-58 (3d Cir. 1979). It makes no practical
difference that the instant case involves the denial of a motion to
enforce a subpoena rather than the grant of a motion to quash a
subpoena. We conclude that we have jurisdiction over this appeal.
Although this case is a dispute between two entities of the
federal government, i.e., the White House and the OIC, it presents
a justiciable controversy. See Nixon,
418 U.S. at 697
.
III.
We will address first the issue that the District Court found
it unnecessary to decide: whether an entity of the federal
government may use the attorney-client privilege to avoid complying
with a subpoena by a federal grand jury. Before we confront the
merits of this question, however, we believe it is important to
identify what is not at issue in this case. The OIC does not seek
to invade the attorney-client relationship existing between Mrs.
Clinton, in her personal capacity, and Mr. Kendall, her personal
lawyer. The privilege set up by the White House is strictly a
governmental privilege, with the White House (or the Office of the
President, alternatively) as client and Ms. Sherburne and Ms.
Nemetz as attorneys. Accordingly, the White House is the real
party in interest in this case, although Mrs. Clinton presents
arguments similar to those of the White House in her capacity as an
intervenor.
The discussion that follows can be summed up rather simply.
We need not decide whether a governmental attorney-client privilege
exists in other contexts, for it is enough to conclude that even if
it does, the White House may not use the privilege to withhold
potentially relevant information from a federal grand jury.
A.
"[T]he privilege of a witness, person, government, State, or
political subdivision thereof [is] governed by the principles of
the common law as they may be interpreted by the courts of the
United States in the light of reason and experience." Fed. R.
Evid. 501. We must therefore apply the federal common law of
attorney-client privilege to the situation presented by this case.
See In re Bieter Co., 16 F.3d 929, 935 (8th Cir. 1994).
The OIC and the White House have taken strikingly different
rhetorical approaches to the question presented here. The OIC
argues that recognizing an attorney-client privilege in these
circumstances would be tantamount to establishing a new privilege,
which courts ordinarily undertake with great reluctance. The White
House, in contrast, argues that the attorney-client privilege is
already the best-established of the common-law privileges and that,
furthermore, it is an absolute privilege. The White House is
correct, of course, in its assertion that the attorney-client
privilege is the oldest known to the common law. See Upjohn Co. v.
United States,
449 U.S. 383, 389
(1981). But the lengthy roots of
the privilege do not necessarily mean that it must apply in this
dispute within the federal government, especially because the
privilege has not previously been so applied. Nor does the White
House advance its case significantly by arguing that the attorney-
client privilege is absolute, in the sense that it cannot be
overcome by a showing of need. See, e.g., Admiral Ins. Co. v.
United States Dist. Court, 881 F.2d 1486, 1493-94 (9th Cir. 1989).
This argument merely begs the true question, whether a governmental
attorney-client privilege exists at all in the context of a federal
criminal investigation.
We address this question by beginning with Proposed Federal
Rule of Evidence 503, which we have described as "a useful starting
place" for an examination of the federal common law of attorney-
client privilege. In re Bieter Co., 16 F.3d at 935. As
promulgated by the Supreme Court in 1972, Proposed Rule 503 would
have defined "client" to include "a person, public officer, or
corporation, association, or other organization or entity, either
public or private." Proposed Fed. R. Evid. 503(a)(1), reprinted in
56 F.R.D. 183, 235 (1972). The commentary makes it clear that
"[t]he definition of `client' includes governmental bodies." Id.
advisory committee's note. But neither the proposed rule nor the
commentary has anything to say about the particular situation
before us in this case; they represent only the broad proposition
that a governmental body may be a client for purposes of the
attorney-client privilege.(3)
Other compilations of the general law have taken similar
approaches. See Restatement (Third) of the Law Governing Lawyers
124 (Proposed Final Draft No. 1, 1996) [hereinafter Restatement]
("[T]he attorney-client privilege extends to a communication of a
governmental organization.");(4) Unif. R. Evid. 502(a)(1) (defining
"client" in terms similar to Proposed Fed. R. Evid. 503). Each of
these authorities, however, expresses at least some concern about
applying the privilege broadly to governmental entities. Uniform
Rule 502 limits the governmental privilege to situations involving
a pending investigation or litigation and requires a finding by the
court that disclosure will "seriously impair" the agency's pursuit
of the investigation or litigation. See Unif. R. Evid. 502(d)(6).(5)
Language in the Restatement addresses even more directly the
concerns relevant in the instant case:
More particularized rules may be necessary where one
agency of government claims the privilege in resisting a
demand for information by another. Such rules should
take account of the complex considerations of
governmental structure, tradition, and regulation that
are involved.
Restatement 124 cmt. b. We agree with this language from the
Restatement and accordingly look to the case law for further
guidance.
The White House has located only two cases involving a clash
between a grand jury and a claim of governmental attorney-client
privilege. In In re Grand Jury Subpoenas Duces Tecum (Farber), 574
A.2d 449 (N.J. Super. Ct. App. Div. 1989), a New Jersey
intermediate appellate court considered two subpoenas issued by a
county grand jury to private lawyers who had been retained to
represent a county agency. The court concluded that "the privilege
is fully applicable to communications between a public body and an
attorney retained to represent it," id. at 454, but reversed the
lower court's order quashing the subpoenas because the attorneys
should have been required to appear before the grand jury and
invoke the privilege in response to specific questions, see id. at
458. In In re Grand Jury Subpoena (Doe), 886 F.2d 135 (6th Cir.
1989), the Sixth Circuit considered a subpoena issued by a federal
grand jury to the city of Detroit. The court vacated the district
court's finding that the city council was not the client of the
city's corporation counsel but concluded that the application of
the attorney-client privilege depended on the confidentiality of
the communications, which in turn depended on the proper
application of the state open-meetings law. See id. at 138. The
court remanded the case to allow the district court to resolve that
issue. See id. at 139.
For several reasons, we do not find these cases particularly
persuasive. First, neither court actually applied a governmental
attorney-client privilege to block a grand jury's investigation;
both found it necessary to remand for further proceedings. We
hesitate to ignore judicial pronouncements too readily as mere
dicta, however, for we must find guidance somewhere in the parties'
proffered authorities, none of which is directly in point. Several
significant factual distinctions between the aforementioned cases
and the case at bar are therefore also relevant. The New Jersey
case involved the interaction between a county grand jury and a
county agency, a subject which is undoubtedly of considerable
importance to the state of New Jersey but does not bear directly on
the relationship of a federal grand jury to a federal entity. In
addition, that case involved private attorneys hired as special
counsel to the county agency, and the court recognized that the
private lawyers were not subject to a state statute requiring all
public employees to testify before any grand jury in exchange for
use immunity. See In re Grand Jury (Farber), 574 A.2d at 455. It
is, of course, impossible for us to determine how the New Jersey
court would have harmonized this statute with the asserted
governmental attorney-client privilege if the attorney involved had
been a public employee. The Sixth Circuit case, involving a
standoff between a federal grand jury and a city government,
implicates potentially serious federalism concerns not present in
the case before us. The court's brief opinion is also rather
unpersuasive legally, as it contains no acknowledgment that to
extend the privilege to a governmental body where individuals
within the government are being scrutinized by a grand jury for
criminal activity poses anything but a routine concern. (The court
cited only two privilege cases, neither of which had anything to do
with government lawyers.)
Moving somewhat further afield, the White House cites a number
of cases in which courts have applied a governmental attorney-
client privilege in civil actions. These cases, all of which
involved either the sui generis jurisprudence of the Freedom of
Information Act (5 U.S.C. 552 (1994))(6) or a situation in which
(6) See Mead Data Cent., Inc. v. United States Dep't of Air
Force, 566 F.2d 242, 252-53 (D.C. Cir. 1977); Covington & Burling
v. Food & Nutrition Serv., 744 F. Supp. 314, 323 (D.D.C. 1990);
Badran v. United States Dep't of Justice, 652 F. Supp. 1437, 1440
(N.D. Ill. 1987); Green v. IRS, 556 F. Supp. 79, 85-86 (N.D. Ind.
1982), aff'd, 734 F.2d 18 (7th Cir. 1984) (table); cf. NLRB v.
Sears, Roebuck & Co.,
421 U.S. 132, 154
(1975) (concluding that
work product doctrine applies in FOIA cases); Wright v. OSHA, 822
F.2d 642, 648 (7th Cir. 1987) (holding that FOIA exemption for
records compiled for law enforcement purposes incorporates
attorney-client privilege); Sacramento Newspaper Guild v.
Sacramento County Bd. of Supervisors, 69 Cal. Rptr. 480, 489
(Cal. Ct. App. 1968) (noting, in action under state public
meeting act, that California cases have assumed that public
agencies may assert privilege). But cf. City of N. Miami v.
Miami Herald Publ'g Co., 468 So. 2d 218, 220 (Fla. 1985) (ruling
that state public records act does not exempt communications
between attorneys and governmental clients, except during
pendency of litigation); News & Observer Publ'g Co. v. Poole, 412
S.E.2d 7, 17 (N.C. 1992) (holding that state public records act
exempts only written communications from attorney to governmental
client, and only for three years).
the party seeking information was a private litigant adversarial to
the government,(7) are not particularly persuasive in the
circumstances of this case. Even if we were to conclude that the
governmental attorney-client privilege ordinarily applies in civil
litigation pitting the federal government against private parties,
a question that we need not and do not decide, we believe the
criminal context of the instant case, in which an entity of the
federal government seeks to withhold information from a federal
criminal investigation, presents a rather different issue. See
Nixon,
418 U.S. at 712
n.19 (suggesting that executive privilege
may apply differently in criminal and civil cases); Cervantes v.
Time, Inc., 464 F.2d 986, 992-93 n.9 (8th Cir. 1972) (recognizing
that reporter's privilege may apply differently in criminal and
civil cases), cert. denied,
409 U.S. 1125
(1973); Zerilli v. Smith,
656 F.2d 705, 711-12 (D.C. Cir. 1981) (same).
Lacking persuasive direction in the case law, we turn to
general principles.
"For more than three centuries it has now been recognized
as a fundamental maxim that the public (in the words
sanctioned by Lord Hardwicke) has a right to every man's
evidence. When we come to examine the various claims of
exemption, we start with the primary assumption that
there is a general duty to give what testimony one is
capable of giving, and that any exemptions which may
exist are distinctly exceptional, being so many
derogations from a positive general rule."
United States v. Bryan,
339 U.S. 323, 331
(1950) (quoting 8 J.
Wigmore, Evidence 2192 (3d ed. 1940)). Privileges, as exceptions
to the general rule, "are not lightly created nor expansively
construed, for they are in derogation of the search for truth."
Nixon,
418 U.S. at 710
. It is appropriate to recognize a privilege
"`only to the very limited extent that permitting a refusal to
testify or excluding relevant evidence has a public good
transcending the normally predominant principle of utilizing all
rational means for ascertaining truth.'" Trammel v. United States,
445 U.S. 40, 50
(1980) (quoting Elkins v. United States,
364 U.S.
206, 234
(1960) (Frankfurter, J., dissenting)).
Federal common law recognizes a privilege only in rare
situations. See, e.g., Jaffee v. Redmond, 116 S. Ct. 1923, 1931
(1996) (adopting psychotherapist-patient privilege); University of
Pa. v. EEOC,
493 U.S. 182, 189
(1990) (rejecting academic peer
review privilege); United States v. Arthur Young & Co.,
465 U.S.
805, 817
(1984) (rejecting work product immunity for accountants);
Upjohn,
449 U.S. at 390
, 397 (assuming, and effectively deciding,
that corporation may assert attorney-client privilege); United
States v. Gillock,
445 U.S. 360, 373
(1980) (rejecting speech-or-
debate privilege for state legislators); Trammel,
445 U.S. at 51
-53
(rejecting privilege against adverse spousal testimony, but
continuing to recognize privilege for confidential marital
communications); Nixon,
418 U.S. at 705
-13 (recognizing qualified
executive privilege); Couch v. United States,
409 U.S. 322, 335
(1973) (rejecting accountant-client privilege); Branzburg v. Hayes,
408 U.S. 665, 690-91
(1972) (rejecting news reporter's privilege);(8)
In re Grand Jury (Virgin Islands), 103 F.3d 1140, 1146-47 (3d Cir.
1997) (rejecting, like eight other circuits, parent-child
privilege); Petersen v. Douglas County Bank & Trust Co., 967 F.2d
1186, 1188 (8th Cir. 1992) (rejecting insurer-insured
confidentiality privilege); United States v. Holmes, 594 F.2d 1167,
1171 (8th Cir.) (rejecting probation officer-parolee privilege),
cert. denied,
444 U.S. 873
(1979).
The White House does not dispute that a grand jury has broad
investigatory powers.(9) As the Supreme Court has recognized, the
principle that the public is entitled to "every man's evidence" is
"particularly applicable to grand jury proceedings." Branzburg,
408 U.S. at 688
. "[O]ur historic commitment to the rule of law,"
and particularly to the twin goals of criminal justice "`that guilt
shall not escape or innocence suffer,'" are strong factors weighing
against the applicability of a privilege. Nixon,
418 U.S. at 708
-
09 (citation omitted).
In essence, the parties' arguments center on two cases,
neither of which is directly analogous to this case, but each of
which has relevance to our decision: Nixon and Upjohn. In Nixon,
a special prosecutor directed a subpoena duces tecum to President
Nixon, seeking tapes and other materials for use in the criminal
trial of seven defendants, including former White House officials.
The President refused to comply with the subpoena, claiming
executive privilege. After concluding that the special prosecutor
had made the showing required by Federal Rule of Criminal Procedure
17(c) for a trial subpoena, see id. at 700, the Supreme Court
considered the President's claim of privilege. The Court
recognized that the need for confidential presidential
communication "can be said to derive from the supremacy of each
branch within its own assigned area of constitutional duties," id.
at 705, and that the privilege for presidential communications "is
fundamental to the operation of Government and inextricably rooted
in the separation of powers under the Constitution," id. at 708.
Despite the strong constitutional foundations of the privilege,
however, the Court concluded that it had to give way to the special
prosecutor's subpoena:
A President's acknowledged need for confidentiality in
the communications of his office is general in nature,
whereas the constitutional need for production of
relevant evidence in a criminal proceeding is specific
and central to the fair adjudication of a particular
criminal case in the administration of justice. Without
access to specific facts a criminal prosecution may be
totally frustrated. The President's broad interest in
confidentiality of communications will not be vitiated by
disclosure of a limited number of conversations
preliminarily shown to have some bearing on the pending
criminal cases.
Id. at 712-13.
The OIC argues that under the logic of Nixon, the White
House's claim of privilege must give way here, for if the
governmental attorney-client privilege exists at all, it is
certainly not constitutionally based. It is true, as the White
House responds, that the President did not assert an attorney-
client privilege in Nixon, and so the case is not directly
controlling. We agree with the OIC, however, that Nixon is
indicative of the general principle that the government's need for
confidentiality may be subordinated to the needs of the
government's own criminal justice processes.
The White House counters by pointing out that Nixon itself
recognized the importance of common-law privileges, including the
attorney-client privilege. See id. at 709-10. No one, the White
House argues, would suppose that the special prosecutor could
compel the production of notes made by a private lawyer concerning
a conversation with a private client about even the most routine
traffic ticket. Why then, the argument continues, should the
benefit of this important privilege not be available to the White
House?
Our discussion of the White House's primary argument,
revolving around Upjohn, should demonstrate why we believe the
private-attorney analogy is inapposite. The White House proffers
Upjohn as emblematic of the wide sweep of the attorney-client
privilege, and we agree with that characterization, to a point. In
Upjohn, the IRS attempted to subpoena records of an internal
investigation conducted by Upjohn's general counsel. The court of
appeals rejected Upjohn's claim of privilege to the extent that the
communications at issue involved lower-level employees outside the
so-called "control group." The Supreme Court rejected the "control
group" test as unnecessarily restrictive, recognizing that if the
attorney-client privilege is to have any value, it must encompass
communications between attorneys and lower-level employees
possessing relevant information:
In the case of the individual client the provider of
information and the person who acts on the lawyer's
advice are one and the same. In the corporate context,
however, it will frequently be employees beyond the
control group as defined by the court below--`officers
and agents . . . responsible for directing [the
company's] actions in response to legal advice'--who will
possess the information needed by the corporation's
lawyers. Middle-level--and indeed lower-level--employees
can, by actions within the scope of their employment,
embroil the corporation in serious legal difficulties,
and it is only natural that these employees would have
the relevant information needed by corporate counsel if
he is adequately to advise the client with respect to
such actual or potential difficulties.
Upjohn,
449 U.S. at 391
(alterations by Supreme Court). The Court
did not specify the precise extent of the privilege but
specifically rejected the "control group" test. Id. at 396-97.
As the White House points out, Upjohn contains strong language
about the importance of the attorney-client privilege in
encouraging the full and frank presentation of legal advice to
corporations, which helps to insure that corporations will act
within the law. See id. at 389, 392. And the Court recognized
that "if the purpose of the attorney-client privilege is to be
served, the attorney and client must be able to predict with some
degree of certainty whether particular discussions will be
protected." Id. at 393. Nevertheless, we believe that important
differences between the government and nongovernmental
organizations such as business corporations weigh against the
application of the principles of Upjohn in this case. First, the
actions of White House personnel, whatever their capacity, cannot
expose the White House as an entity to criminal liability. (No one
suggests that any of the conduct under investigation by the OIC
could expose the White House to civil liability.) A corporation,
in contrast, may be subject to both civil and criminal liability
for the actions of its agents, and corporate attorneys therefore
have a compelling interest in ferreting out any misconduct by
employees. The White House simply has no such interest with
respect to the actions of Mrs. Clinton.
We also find it significant that executive branch employees,
including attorneys, are under a statutory duty to report criminal
wrongdoing by other employees to the Attorney General. See 28
U.S.C. 535(b) (1994). Even more importantly, however, the
general duty of public service calls upon government employees and
agencies to favor disclosure over concealment. The difference
between the public interest and the private interest is perhaps, by
itself, reason enough to find Upjohn unpersuasive in this case.
The importance of the public interest in questions of disclosure
versus privilege is not unique to this case, for it was a key
reason the Supreme Court rejected the concept of work product
immunity for accountants:
By certifying the public reports that collectively depict
a corporation's financial status, the independent auditor
assumes a public responsibility transcending any
employment relationship with the client. The independent
public accountant performing this special function owes
ultimate allegiance to the corporation's creditors and
stockholders, as well as to the investing public. This
`public watchdog' function demands that the accountant
maintain total independence from the client at all times
and requires complete fidelity to the public trust. To
insulate from disclosure a certified public accountant's
interpretations of the client's financial statements
would be to ignore the significance of the accountant's
role as a disinterested analyst charged with public
obligations.
Arthur Young,
465 U.S. at 817
-18. The public responsibilities of
the White House are, of course, far greater than those of a private
accountant performing a service with public implications. We
believe the strong public interest in honest government and in
exposing wrongdoing by public officials would be ill-served by
recognition of a governmental attorney-client privilege applicable
in criminal proceedings inquiring into the actions of public
officials. We also believe that to allow any part of the federal
government to use its in-house attorneys as a shield against the
production of information relevant to a federal criminal
investigation would represent a gross misuse of public assets. See
also Jupiter Painting, 87 F.R.D. at 598 (recognizing the
"pernicious potential" of a governmental attorney-client privilege
"in a government top-heavy with lawyers").(10)
(10) Judge Kopf cites several opinions of the Office of Legal
Counsel for support. See post at 41-45. We find each of these
opinions unpersuasive in the context of this case. Theodore
Olson's 1982 opinion concerning the confidentiality of
communications between the President and the Attorney General
relies significantly on Freedom of Information Act cases and
Upjohn, which we believe are not helpful to the White House in
this case, and does not purport to address the viability of the
privilege in the face of a grand jury subpoena. See Memorandum
for the Attorney General re: Confidentiality of the Attorney
General's Communications in Counseling the President, 6 Op. Off.
Legal Counsel 481, 490-97 (1982). Each of the other opinions
cited by the White House involves a government attorney
representing a government official sued in his or her individual
capacity in a Bivens action. In such a case, the government
attorney enters into a personal attorney-client relationship with
the individual defendant, and the usual privilege applies. See
28 C.F.R. _ 50.15(a)(3) (1996). No such personal attorney-client
relationship exists between Mrs. Clinton and the White House
attorneys.
We recognize the White House's concern that "[a]n uncertain
privilege, or one which purports to be certain but results in
widely varying applications by the courts, is little better than no
privilege at all." Upjohn,
449 U.S. at 393
. Our first response is
that the White House assumes that the attorney-client privilege is
more predictable ex ante than it actually is. A client discussing
an issue with a lawyer cannot know, for example, whether a
bankruptcy trustee will later waive the privilege, see Commodity
Futures Trading Comm'n v. Weintraub,
471 U.S. 343, 358
(1985), or
whether the lawyer's assistance will later become an issue in a
proceeding, see Restatement 130(1), or whether the lawyer and
client will later become involved in a dispute, see Restatement
133, any of which may result in disclosure of the conversation.
Even so, we believe our holding in this case does not make the
duties of government attorneys significantly more difficult.
Assuming arguendo that there is a governmental attorney-client
privilege in other circumstances, confidentiality will suffer only
in those situations that a grand jury might later see fit to
investigate. Because agencies and entities of the government are
not themselves subject to criminal liability, a government attorney
is free to discuss anything with a government official--except for
potential criminal wrongdoing by that official--without fearing
later revelation of the conversation. An official who fears he or
she may have violated the criminal law and wishes to speak with an
attorney in confidence should speak with a private attorney, not a
government attorney.
Nor do we foresee any likely effect of our decision on the
ability of a government lawyer to advise an official who is
contemplating a future course of conduct. If the attorney explains
the law accurately and the official follows that advice, no harm
can come from later disclosure of the advice, which would be
unlikely anyway. Like the Nixon Court, "we cannot conclude that
advisers will be moved to temper the candor of their remarks by the
infrequent occasions of disclosure because of the possibility that
such conversations will be called for in the context of a criminal
prosecution." Nixon,
418 U.S. at 712
. The White House's "chilling
effect" argument is no more persuasive in this case than it was in
Nixon.
B.
Before we can conclude that the White House may not use the
attorney-client privilege to thwart the grand jury's subpoena, we
must consider the assertion, made by both the White House and Mrs.
Clinton, that the presence of Mr. Kendall, Mrs. Clinton's private
attorney, during her meetings with the White House attorneys
affects the calculus in this case. We disagree.
The White House and Mrs. Clinton rely on the common-interest
doctrine, which expands the coverage of the attorney-client
privilege in certain situations:
If two or more clients with a common interest in a
litigated or non-litigated matter are represented by
separate lawyers and they agree to exchange information
concerning the matter, a communication of any such client
that otherwise qualifies as privileged . . . that relates
to the matter is privileged as against third persons.
Any such client may invoke the privilege, unless it has
been waived by the client who made the communication.
Restatement 126(1); see also Proposed Fed. R. Evid. 503(b)(3), 56
F.R.D. at 236. This doctrine softens the ordinary requirement that
lawyer-client communications must be made in confidence in order to
be protected by the privilege. See Restatement 121; John Morrell
& Co. v. Local Union 304A, United Food & Commercial Workers, 913
F.2d 544, 555-56 (8th Cir. 1990) (applying the doctrine), cert.
denied,
500 U.S. 905
(1991).
One possible interpretation of the meetings at issue here is
that they involved Mrs. Clinton in her personal capacity, her
personal attorney, Mrs. Clinton as a representative of the White
House (which we assume for the sake of argument would put her there
in an official capacity), and the White House's official attorneys,
in a type of four-sided conference. We will assume this scenario
as a factual framework for the possible application of the common-
interest doctrine. We conclude that the doctrine is inapplicable,
for two distinct reasons.
First, as our discussion in Part III-A, supra, demonstrates,
the White House's assumption that communications made by Mrs.
Clinton to Ms. Sherburne and Ms. Nemetz "otherwise qualif[y] as
privileged," Restatement 126(1), begs the question we are called
upon to decide. In addition, there is lacking in this situation
the requisite common interest between the clients, who are Mrs.
Clinton in her personal capacity and the White House. Mrs.
Clinton's interest in the OIC's investigation is, naturally,
avoiding prosecution, or else minimizing the consequences if the
OIC decides to pursue charges against her. One searches in vain
for any interest of the White House which corresponds to Mrs.
Clinton's personal interest. The common interest may be "either
legal, factual, or strategic in character," id. cmt. e, but no
legitimate interest offered by the White House meets even this
loose standard. Most of the interests put forward by the White
House are summed up in this excerpt from its brief:
Both [the White House and Mrs. Clinton] needed a full and
accurate understanding of the facts surrounding the
various incidents under investigation and of the legal
consequences of those facts; both had an interest in
ensuring that there was no distortion of these events by
political and legal adversaries, and no misunderstanding
of them by the public.
Br. of White House at 27. In addition, the White House and Mrs.
Clinton cite the need for allocation of responsibility between
personal and public attorneys, the desire to determine whether any
White House policies need to be altered to prevent future
difficulties, the fact that the OIC is investigating "official
misconduct," and the ongoing Whitewater-related investigations by
the RTC, FDIC, and Congress as factors creating a common interest
between them.
We have no doubt that the White House and Mrs. Clinton are
concerned with understanding fully the facts involved in the OIC's
investigation, nor that dividing responsibility between the
personal attorneys and White House counsel can be a difficult task.
And surely the multiplicity of investigating authorities only
complicates the lives of these attorneys. But these justifications
amount to no more than an assertion that "we all want to obey the
law." We do not believe the common-interest doctrine stretches
that far.
As for the suggestion that the OIC is investigating "official
misconduct," thus triggering the interest of the White House, we
believe there is a difference between "official misconduct"--
whatever that may be--and "misconduct of officials." The OIC is
actually investigating the actions of individuals, some of whom
hold positions in the White House. The OIC's investigation can
have no legal, factual, or even strategic effect on the White House
as an institution. Certainly action by the OIC may occupy the time
of White House staff members, may vacate positions in the White
House if any of its personnel are indicted, and may harm the
President and Mrs. Clinton politically. But even if we assume that
it is proper for the White House to press political concerns upon
us, we do not believe that any of these incidental effects on the
White House are sufficient to place that governmental institution
in the same canoe as Mrs. Clinton, whose personal liberty is
potentially at stake.
The White House argues that it must be permitted to invoke the
attorney-client privilege "`not for the benefit of the President as
an individual, but for the benefit of the Republic.'" Nixon v.
Administrator of Gen. Servs.,
433 U.S. 425, 449
(1977) (quoting the
Solicitor General's brief filed in that case). Because, however,
the White House and Mrs. Clinton have failed to establish that the
interests of the Republic coincide with her personal interests, the
attempt must fail.
C.
We next confront the conclusion of the District Court that
Mrs. Clinton's reasonable belief that her conversations with White
House lawyers were privileged is sufficient to prevent their
disclosure. Because we conclude that this issue is irrelevant to
the inquiry at hand, we need not examine whether Mrs. Clinton's
belief was reasonable.
In some aspects of the law of attorney-client privilege, the
client's reasonable beliefs may be relevant. For example, courts
have found the privilege applicable where the client reasonably
believed that a poseur was in fact a lawyer,(11) reasonably believed
that a lawyer represented the client rather than another party,(12)
or reasonably believed that a conversation with a lawyer was
confidential, in the sense that its substance would not be
overheard by or reported to anyone else.(13) All these situations
involve, in essence, reasonable mistakes of fact, none of which is
applicable here. Because Mrs. Clinton does not claim that she
believed that the White House lawyers represented her personally,
her argument must be that she believed that the law sweeps broadly
enough to cloak these conversations within the attorney-client
privilege.(14) But we know of no authority, and Mrs. Clinton has
cited none, holding that a client's beliefs, subjective or
objective, about the law of privilege can transform an otherwise
unprivileged conversation into a privileged one.
As the OIC notes, only rarely does the law take account of an
actor's beliefs about the law at the time he or she took action:
the doctrine of qualified immunity, the non-applicability of new
rules of constitutional law to federal habeas petitions brought by
state prisoners, and the good-faith exception to the warrant
requirement are perhaps the best examples. Without delving into
the policy reasons behind these exceptional legal doctrines, we are
satisfied that there is no compelling reason that a reasonable-
mistake-of-law rule should apply in the realm of privileges. See
Trammel,
445 U.S. at 53
(overruling earlier case that had upheld
privilege against adverse spousal testimony and affirming
defendant's conviction, despite possible reliance on prior law).
D.
For the reasons stated, we conclude that the White House may
not use the attorney-client privilege to avoid complying with the
subpoena issued in this case by a federal grand jury calling for
the notes in question of Ms. Nemetz and Ms. Sherburne.
IV.
The District Court held that the work product doctrine also
applied in this case to protect the White House attorneys' notes
from disclosure. We disagree.
The work product doctrine sharply limits the access of an
opponent to materials "prepared in anticipation of litigation or
for trial." Fed. R. Civ. P. 26(b)(3); see also Hickman v. Taylor,
329 U.S. 495, 511
(1947) ("materials obtained or prepared by an
adversary's counsel with an eye toward litigation"); Restatement
136(1) (material "prepared by a lawyer for litigation then in
progress or in reasonable anticipation of future litigation"). The
White House's claim of work product immunity founders on the
"anticipation of litigation" requirement of the doctrine.
Courts have applied work product immunity in a variety of
legal contexts. See Hickman,
329 U.S. at 513
-14 (civil case);
United States v. Nobles,
422 U.S. 225, 238
(1975) (criminal case);
In re Grand Jury Proceedings (Duffy), 473 F.2d 840, 846-47 (8th
Cir. 1973) (grand jury investigation). The essential element of
each case, however, is that the attorney was preparing for or
anticipating some sort of adversarial proceeding involving his or
her client.(15) The White House's argument that its lawyers were
preparing for the OIC's investigation is simply unpersuasive; as we
have stated previously, the OIC is not investigating the White
House, nor could it do so. White House officials may be under
investigation on account of their individual acts, but we know of
no authority allowing a client such as the White House to claim
work product immunity for materials merely because they were
prepared while some other person, such as Mrs. Clinton, was
anticipating litigation.(16) Cf. In re California Pub. Utils. Comm'n,
892 F.2d 778, 781 (9th Cir. 1989) (concluding that non-party to
litigation may not assert work product doctrine).
As a fall-back position, the White House suggests that
anticipated congressional hearings will suffice as well as
anticipated litigation. The Restatement seems to agree with the
White House. See Restatement 136 cmt. h (stating that litigation
"includes a proceeding such as a grand jury or a coroner's inquiry
or an investigative legislative hearing"). Neither the White
House, Mrs. Clinton, nor the Restatement cites any authority for
this proposition, however, and we have discovered none. Cf. P. &
B. Marina, L.P. v. Logrande, 136 F.R.D. 50, 58-59 (E.D.N.Y. 1991)
(finding letters from lobbyist to client not protected work
product), aff'd, 983 F.2d 1047 (2d Cir. 1992) (table). Even if it
could be said that the White House anticipated a congressional
investigation of the White House itself, rather than merely of
individuals who work at the White House, and even if we consider a
congressional investigation to be an adversarial proceeding, the
only harm that could come to the White House as a result of such an
investigation is political harm. As in our discussion of the
common-interest doctrine, we decline to endorse the position of the
White House where it is based on nothing more than political
concerns.
The White House bears the burden of establishing the elements
of work product immunity. See Restatement 139(2). Based on the
showing the White House has made here, we cannot conclude that the
work product of its attorneys may be kept from the OIC.
V.
At oral argument, we raised sua sponte the possibility that we
could decide the questions of law presented in this appeal without
necessarily applying them to this case. After further
consideration, we have concluded that our decision must be applied
to the parties now before us.
In Harper v. Virginia Dep't of Taxation,
509 U.S. 86
(1993),
the Supreme Court settled one major question of the retroactivity
of decisions:
When this Court applies a rule of federal law to the
parties before it, that rule is the controlling
interpretation of federal law and must be given full
retroactive effect in all cases still open on direct
review and as to all events, regardless of whether such
events predate or postdate our announcement of the
rule. . . . In both civil and criminal cases, we can
scarcely permit `the substantive law to shift and spring'
according to `the particular equities of individual
parties' claims' of actual reliance on an old rule and of
harm from a retroactive application of the new rule.
Id. at 97 (citation and alterations omitted); see also Griffith v.
Kentucky,
479 U.S. 314, 322-23
(1987) (adopting same rule for
criminal cases).
The Court's recent decisions have not forced it to contend
with the permissibility of "pure prospectivity," that is, the
practice of announcing a new rule but applying it neither to the
parties involved in the watershed case nor to others similarly
situated. The Court has on occasion resorted to purely prospective
decisionmaking, see James B. Beam Distilling Co. v. Georgia,
501
U.S. 529, 536
(1991) (opinion of Souter, J.) (citing cases), but
language in the Court's recent opinions convinces us that purely
prospective adjudication is at least unwise and most likely beyond
our power. See Harper,
509 U.S. at 97
(citing "`basic norms of
constitutional adjudication'" (quoting Griffith,
479 U.S. at 322
));
id. at 106 (Scalia, J., concurring) ("prospective decisionmaking is
quite incompatible with the judicial power").
The most relevant precedent also suggests that it is
appropriate to apply our decision in this case. In Trammel, the
Supreme Court considered the well-established common law privilege
against adverse spousal testimony. See Trammel,
445 U.S. at 43
-46
(describing history of privilege). The Court had specifically
affirmed the vitality of the privilege in Hawkins v. United States,
358 U.S. 74, 77-79
(1958), and the Proposed Rules of Evidence had
recommended continuation of the privilege. See Proposed Fed. R.
Evid. 505(a), 56 F.R.D. at 244. Nevertheless, the district court
permitted Trammel's wife to testify against him over his objection,
and the court of appeals affirmed his conviction. See Trammel,
445
U.S. at 42
-43. The Supreme Court, by a unanimous vote, took the
privilege away from the defendant-spouse, leaving it to the
witness-spouse to decide whether to testify. See id. at 53.
Despite this clear overruling of its earlier precedent, the Court
applied the new rule to Trammel's case and affirmed his conviction.
We believe the same treatment is appropriate in this case, which
involves no such drastic change in the law; in fact, because this
is a case of first impression, our decision involves no change in
the law at all.
In short, a purely prospective decision is little more--
perhaps nothing more--than an advisory opinion. We decline to
render such an opinion and conclude that our holding necessarily
applies to the White House in this case.
VI.
To sum up, we hold that neither the attorney-client privilege
nor the attorney work product doctrine is available to the White
House in the circumstances of this case. Accordingly, the order of
the District Court is reversed, and the case is remanded for the
entry of an order granting the OIC's motion to compel.
KOPF, District Judge, dissenting.
I. Introduction
I respectfully dissent. This case involves the institutional
capacity of the President of the United States to function with the
advice of legal counsel. The clarity of this point is made evident
by the subpoena, which demands notes taken by "the Office of
Counsel to the President." (Subpoena Rider at 1.) Because of this
important fact, I would apply United States v. Nixon,
418 U.S. 683
(1974), rather than the position urged by the Independent Counsel
(IC). I would not follow Nixon for some purposes, and disregard it
for others.
Federal Rule of Evidence 501 requires that we decide whether
federal common law extends the attorney-client privilege to the
White House. The White House possesses an attorney-client
privilege under proposed Federal Rule of Evidence 503, sometimes
called Supreme Court Standard 503 (Rule 503). Rule 503 accurately
states the federal common law regarding the attorney-client
privilege, as this court has consistently stated in the past. The
following portion of Rule 503 is pertinent to the dispute here:
(a) Definitions. As used in this rule:
(1) A "client" is a person, public officer, or
corporation, association, or other organization or
entity, either public or private, who is rendered
professional legal services by a lawyer, or who consults
a lawyer with a view to obtaining professional legal
services from him.
(2) A "lawyer" is a person authorized, or reasonably
believed by the client to be authorized, to practice law
in any state or nation.
(3) A "representative of the lawyer" is one employed to
assist the lawyer in the rendition of professional legal
services.
(4) A communication is "confidential" if not intended to
be disclosed to third persons other than those to whom
disclosure is in furtherance of the rendition of
professional legal services to the client or those
reasonably necessary for the transmission of the
communication.
(b) General rule of privilege. A client has a privilege
to refuse to disclose and to prevent any other person
from disclosing confidential communications made for the
purpose of facilitating the rendition of professional
legal services to the client, (1) between himself or his
representative and his lawyer or his lawyer's
representative, or (2) between his lawyer and the
lawyer's representative, or (3) by him or his lawyer to
a lawyer representing another in a matter of common
interest, or (4) between representatives of the client or
between the client and a representative of the client,
or (5) between lawyers representing the client.
Rule 503, reprinted in 56 F.R.D. 183, 235-36 (1972).
I disagree with the IC that the Rule does not mean what it
states, and we should act as if it did not exist. There is no
reason to deny the well-recognized principle that the government,
including the White House, is legitimately entitled to the
attorney-client privilege (and the work-product doctrine). The
White House, no less than a state government or a corporation, is
entitled to the privilege in all types of cases, including criminal
cases, so that the White House can comply with the law. The
privilege advances the public interest by assuring that the White
House will receive well-founded, fact-specific legal advice based
upon candid responses from White House officials. Accordingly, I
disagree with the IC's position that the White House lacks the
attorney-client privilege.
However, the Supreme Court's decision in Nixon persuades me
that the White House privilege gives way to a grand jury subpoena
duces tecum issued under the direction of the IC provided the
procedural protections of Nixon have been observed. Unlike the IC,
I believe Nixon overcomes, but does not erase, the privilege.
Nixon requires us to conclude that the President's general need for
confidentiality, expressed here by the attorney-client privilege,
is overshadowed by the grand jury's general need for evidence of
the truth. Still, Nixon does not, as the IC urges and the majority
finds, permit us to assume that the White House lacks the privilege
in the first instance.
In particular, I would require, as Nixon did in the context of
a trial subpoena, that before documents are revealed to the grand
jury:
(1) the special prosecutor must make an initial threshold
showing before the district court that the documents are:
(a) specifically needed; (b) relevant; and (c)
admissible;
(2) assuming such a showing has been made, the documents
are first delivered to the district judge, who will
examine the documents in chambers, to decide if in fact
the documents are relevant and admissible, and irrelevant
documents will be returned under seal to the White House.
Id. at 700-02, 713-16.
I do not agree that a grand jury subpoena directed at the
White House is more important than the trial subpoena directed at
the White House in Nixon. The President's justifiable need for
confidentiality is, as Nixon recognized, ever present no matter
what other governmental interests are asserted by a prosecutor.
The public purpose served by a grand jury is no more important than
the public purpose served by a criminal trial. Thus, I disagree
with the court's failure to require the IC to make the same type of
showing on a motion to compel a response to a grand jury subpoena
directed at the White House as would be required by Nixon for a
trial subpoena.
Furthermore, because Mrs. Clinton also has an attorney-client
privilege in her personal capacity, her privilege, implemented in
this case by the "common interest" part of the rule, should be
considered a complete defense to the grand jury subpoena issued to
the White House. I have two reasons for this belief: (1) unlike
the White House, Mrs. Clinton has various constitutional rights
that are implicated by intercepting her privileged communications
without warning and then revealing those communications to a
prosecutor; and (2) Nixon did not attempt to balance the "public
interest" against the "individual interest" and thus cannot serve
as precedent for the dispute between the IC and Mrs. Clinton in her
personal capacity.
Finally, because we should now declare for the first time that
Nixon overcomes the White House privilege if a proper showing is
made, Mrs. Clinton would consult with White House lawyers at her
peril in the future. She would be informed from our opinion that
such consultations might no longer be protected since the other
party to her conversations (the White House and its lawyers) could
be obligated to respond to a grand jury subpoena if the prosecutor
made the showing required by Nixon. Consequently, in the future,
and to the extent of a grand jury subpoena, any such communications
could not legally be "intended" by Mrs. Clinton as "confidential"
under Rule 503(a)(4) because she would know and understand that her
communications could be "disclosed to third persons."
Accordingly, I would affirm the district court's properly
cautious decision refusing to enforce the subpoena. Yet I would
make it clear that the White House attorney-client privilege gives
way to a grand jury subpoena issued under the supervision of the IC
if the procedural protections afforded the White House by Nixon are
satisfied. A detailed explanation of these views is set forth
below.
II. The White House
Like any other client, the White House has an attorney-client
privilege in all types of cases. The question, and it is a very
difficult one, is whether that privilege should prevail in this
first-of-a-kind case. Subject to certain procedural protections,
fidelity to Nixon requires that the White House privilege give way
to the limited extent of a subpoena duces tecum issued by a federal
grand jury acting at the direction of the IC. We should not,
however, act as if the White House lacks the privilege or allow the
IC to make an end run around the procedural protections afforded
the White House by Nixon.
A. The White House and the Attorney-Client Privilege
We must ask two questions when determining whether the White
House has an attorney-client privilege: (1) what standard applies
and (2) has the White House satisfied that standard?
1. The Common Law and Rule 503
Federal Rule of Evidence 501 provides that "the privilege of
a . . . person" or "government" "shall be governed by principles of
the common law as they may be interpreted by the courts of the
United States in light of reason and experience." It is our task
to find the common law of attorney-client privilege.
Promulgated by the Supreme Court in November 1972,
Rule 503(a)(1) plainly grants the White House the attorney-client
privilege. The rule extends the privilege to "organization[s] or
entit[ies], either public or private."
The subpoena was directed to the "White House." Thus, the IC
recognized the "White House" as a discrete governmental
organization or entity protected by the unambiguous language of
Rule 503(a)(1). Consequently, if Rule 503 applies, the White House
has the privilege it asserts.
To avoid Rule 503, it is argued that the rule does not apply
because (1) Congress did not enact it; (2) it does not apply to
criminal cases involving governmental entities; (3) the public
interest is not served when a governmental entity asserts the
privilege. None of these arguments suggest a valid reason for
failing to follow the plain words of the Rule.
a. Rule 503 Reflects the Common Law Despite Congressional Action
Congress did not enact Rule 503 and various other privilege
rules. Instead, Congress adopted a general rule (Rule 501)
allowing the federal courts to establish privilege in light of the
common law. See Jaffee v. Redmond, 116 S. Ct 1923, 1927 n.7, 1930
(1996) (citing proposed Rule 504 regarding psychotherapist-patient
privilege in support of the Court's adoption, under Rule 501, of
such a privilege).
Our precedents correctly state, however, that Rule 503 is "`an
accurate definition of the federal common law of attorney-client
privilege.'" In Re Bieter Co., 16 F.3d 929, 935 (8th Cir. 1994)
(quoting 2 Jack B. Weinstein et al., Weinstein's Evidence
503[02], at 503-17 (1975)) (applying rule and finding the privilege
applied to partnership and prevented disclosure of communication
between a consultant of partnership and attorney); United States v.
Spector, 793 F.2d 932, 938 (8th Cir. 1986), cert. denied,
479 U.S.
1031
(1987) (stating "courts have relied upon [Rule 503] as an
accurate definition of the federal common law of attorney-client
privilege" and affirming order quashing subpoena for taped
statements made by client at direction of a lawyer); Citibank, N.A.
v. Andros, 666 F.2d 1192, 1195 n.6 (8th Cir. 1981) (stating rule is
"a source for defining the federal common law of attorney-client
privilege" and holding that privilege belonged to trustee of a
corporation and could be waived by him).
Other circuits have come to the same conclusion. See, e.g.,
Tennenbaum v. Deloitte & Touche, 77 F.3d 337, 340 (9th Cir. 1996)
(the court would look to Rule 503 since the proposed rule, although
not adopted, was a convenient comprehensive guide to existing
federal law of privilege) (citations omitted); United States v.
Moscony, 927 F.2d 742, 751 (3rd Cir.), cert. denied,
501 U.S. 1211
(1991) (Supreme Court Standard 503, though not promulgated, is a
restatement of the common law of attorney-client privilege applied
in the federal courts before the adoption of the federal rules)
(citations omitted); United States v. (Under Seal), 748 F.2d 871,
874 n. 5 (4th Cir. 1984) (Rule 503 provides a comprehensive guide
to the federal common law of attorney-client privilege) (citations
omitted).
Importantly, the Supreme Court proposed the Rule. This court,
and others, frequently refers to the Rule as "Supreme Court
Standard 503." See, e.g., In Re Bieter Co., 16 F.3d at 935; United
States v. Spector, 793 F.2d at 938. When searching for the common
law, we should not disregard the fact that the Supreme Court
approved the Rule.
Distinguished commentators have also reached the same
conclusion: "Standard 503 is a restatement of the traditional
common law attorney-client privilege that had been applied in the
federal courts prior to the adoption of the federal rules.
Consequently, despite the failure of Congress to enact a detailed
article on privileges, Standard 503 should be referred to by the
courts." 2 Jack B. Weinstein et al., Weinstein's Evidence
503[02], at 503-19 (1996) (citing, among other cases, Diversified
Indus., Inc. v. Meredith, 572 F.2d 596, 605 n.1 (8th Cir. 1977))
(footnotes omitted). See also Restatement of the Law (Third)
Governing Lawyers 124 & Rep.'s n. at 412 (Proposed Official Draft
1996),(1) available in WL database "REST-LGOV" (citing Rule 503(a)(1)
as support for the proposition that the "prevailing rule" is that
the government has the same privilege as its private counterparts).
Therefore, the failure of Congress to adopt Rule 503 is not
significant. The Rule is an accurate definition of the federal
common law of attorney-client privilege despite the lack of
Congressional approval.
b. Rule 503 Makes No Distinction for Criminal Cases
Contrary to the second argument for not applying it, the plain
words of Rule 503 make no distinction for criminal cases. I find
no reason to make an exception for special prosecutors who have a
dispute with the White House.
To the extent it is suggested that the privilege has never
been extended to a federal governmental entity in a criminal case
brought by another federal governmental entity, the point is
meaningless. The reason there are no such cases is obvious:
intra-governmental disputes in the federal criminal arena seldom
arise, regardless of whether the attorney-client privilege is
involved.
Further, there is certainly no case which denies the privilege
in matters such as this. In fact, the only remotely relevant
federal case implicitly acknowledged the existence of the privilege
for a state governmental entity in a federal criminal
investigation. In Re Grand Jury Subpoena, 886 F.2d 135, 137-38
(6th Cir. 1989) ("city council" was a "client" for the purpose of
attorney-client privilege when a federal grand jury sought
documents from the City of Detroit and the city asserted the
privilege).
Most importantly, there is no reason to pretend the privilege
does not exist simply because the White House asserts it during a
criminal investigation. As will be discussed in more detail later,
Nixon did not take this approach. Rather, as the Nixon court made
clear, the appropriate approach is to balance the governmental
privilege asserted by the White House (whether it be the attorney-
client privilege or some other privilege) against the competing
governmental interest asserted by the IC, the ultimate goal being
to promote the "public interest."
418 U.S. at 707
-13.
Consequently, I reject the argument that it is proper to
ignore the attorney-client privilege because the IC has the power
to attach the label "criminal" to this dispute.
c. A White House Privilege Promotes the Public Interest
Recognition of the privilege for governmental entities,
particularly the White House, advances the public interest.
Since Rule 503 was proposed, the federal courts have
consistently recognized that governmental entities have the
attorney-client privilege. See, e.g., Mead Data Cent., Inc. v.
United States Dep't of Air Force, 566 F.2d 242, 252-53 & n.20 (D.C.
Cir. 1977) (recognizing privilege in Freedom Of Information Act
(FOIA) case and stating that in other contexts "there are decisions
which have applied [the privilege] to deny a discovery request
directed toward a government") (citations omitted); Jupiter
Painting Contracting Co. v. United States, 87 F.R.D. 593, 598 & n.6
(E.D. Pa. 1980) (recognizing privilege in a suit for a tax refund
and stating that "[c]ourts generally have accepted that attorney-
client privilege applies in governmental context") (collecting
federal cases dating from and after 1963) (citations omitted).
While it is true that none of these cases dealt with the
precise issue in this case, one cannot ignore the fact that the
courts have consistently held that the public interest is furthered
by extending the privilege to governmental entities. As a result,
we should be very skeptical of the IC's argument that requires us
to ignore a general principle.
Since at least 1965, Congress has affirmatively recognized the
government's need to be protected by the attorney-client privilege
regarding the production of documents. NLRB v. Sears, Roebuck &
Co.,
421 U.S. 132, 136
, 154 (1975) (applying 5 U.S.C. 552(b)(5))
(FOIA case). The Court observed that the legislative history,
authored in 1965, declared the exemption "`would include . . .
documents which would come within the attorney-client privilege if
applied to private parties.'" Id. (quoting S. Rep. No. 813, 89th
Cong., 1st Sess., 3 (1965)). Consequently, believing that Congress
would find recognition of the privilege to be a surprise is
impossible.
The proposed Restatement of the Law (Third) Governing Lawyers
also recognizes that the attorney-client privilege "extends to a
communication of a governmental organization" and to "an individual
officer, employee, or other agent of a governmental organization
. . . ." Restatement of the Law (Third) Governing Lawyers 124,
at 408. This section "states the generally prevailing rule that
governmental agencies and agents enjoy the same privilege as non-
governmental counterparts." Id. cmt. b at 409 & Rep.'s n. at 412-
14 (collecting federal and state cases dating from and after 1942)
(citations omitted) (emphasis added). The rationale is obvious:
"The privilege aids government entities and officers in obtaining
legal advice founded on a complete and accurate factual picture.
Communications from such agents should be correspondingly
privileged." Id. at 408. The Restatement's reasoned conclusion,
coming nearly twenty-five years after the Supreme Court proposed
Rule 503, lends added support for the finding that a governmental
attorney-client privilege advances, rather than detracts from, the
public interest.(2)
Although the IC now holds the opposite view, the United States
has previously and consistently taken the position that
governmental entities, particularly the President and his advisers,
are protected by the attorney-client privilege. One prior
expression of the views of the United States regarding the
attorney-client privilege, the President, and his advisers is
particularly thoughtful.
In a 1982 opinion issued to the Attorney General of the United
States, Assistant Attorney General Theodore B. Olson, of the Office
of Legal Counsel (OLC), advised the Attorney General that
"[a]lthough the attorney-client privilege traditionally has been
recognized in the context of private attorney-client relationships,
the privilege also functions to protect communications between
government attorneys and client agencies or departments, as
evidenced by its inclusion in the FOIA, much as it operates to
protect attorney-client communications in the private sector."
Memorandum for the Attorney General re: Confidentiality of the
Attorney General's Communications in Counseling the President, 6
Op. Off. Legal Counsel 481, 495 (1982) (citations omitted),
reprinted in Appellee's App. [hereinafter Att'y Gen.'s Mem.].
OLC found convincing support for its position in Upjohn Co. v.
United States,
449 U.S. 383, 389-97
(1981) (applying attorney-
client privilege in corporate context, rejecting "control group
test," and holding that detailed information provided to corporate
counsel by corporate managers, who were not necessarily policy
makers, regarding questionable payments by corporation was
protected from an IRS document summons under the attorney-client
privilege(3)). Att'y Gen.'s Mem. at 495-96.
According to OLC, the President, no less than the Upjohn
corporation, required the attorney-client privilege so he could
comply with the law by insuring that subordinates talked candidly
with counsel. Id. OLC reasoned:
[I]t is likely that, in most instances, the `client' in
the context of communications between the President and
the Attorney General, and their respective aides, would
include the broad scope of White House Advisers in the
Office of the President. The `functional' analysis
suggested by Upjohn focuses on whether the privilege
would encourage the communication of relevant and helpful
information from advisors most familiar with the matters
on which legal assistance is sought, as well as whether
the privilege is necessary to protect and encourage the
communication of frank and candid advice to those
responsible for executing the recommended courses of
action.
Id. at 496.
If this court has to make a choice when discovering the common
law as applied to the White House, we ought to choose the analysis
contained in the Memorandum for the Attorney General. I am
particularly opposed to the adoption of the position urged by the
IC because it is contrary to the long-standing policy of the
Department of Justice.
To avoid Upjohn, it is argued that the White House is
different from a corporation in three distinguishing respects. It
is argued that the White House cannot be prosecuted for a crime.
The IC also argues that White House lawyers, unlike counsel for
corporations, have a statutory responsibility to report crimes.
Finally, it is claimed that the White House, as opposed to a
corporation, has a duty to further honest government.
Since the Upjohn decision was not based upon the fact that a
corporation could be prosecuted for a crime, it is an irrelevancy
to distinguish Upjohn on that basis. In Upjohn, the government
pursued the exact opposite of the IC's argument here that the
privilege does not apply because the White House cannot be
prosecuted for a crime. In Upjohn the government argued that
because corporations were subject to criminal liability
corporations had a sufficient incentive to comply with the law and,
therefore, corporations did not need the attorney-client privilege
because they would seek legal advice in any event. The Court
rejected this argument in a footnote.
449 U.S. at 393
n.2. Simply
put, Upjohn did not turn on the presence or absence of criminal
liability. Id.
More to the point, Upjohn reasoned that corporate policy
makers legitimately need their lawyers to know the facts in order
for the corporation to comply with the law, and, absent the
corporate attorney-client privilege, the fact-finding process would
be impaired along with the corporation's ability to conform its
conduct to the law after receiving fact-based legal advice. Id. at
389-97. Likewise, the Court reasoned that even minor corporate
employees needed candid legal advice to insure that the corporation
complied with the law, and absent the privilege such advice would
not likely be forthcoming. Id. The same reasoning applies to the
White House.
I also reject the related argument that we can distinguish
Upjohn on the basis that a White House official who fears he or she
may have violated the criminal law should speak to a private
attorney, not a government lawyer. This argument misses the point
for extending the privilege to organizations.
The organizational attorney-client privilege, be it asserted
by the White House or Upjohn, is intended to encourage officials,
who may be fearful of losing their jobs, their reputations, their
privacy, or their liberty, to tell the organization the raw truth
so it can comply with the law. The privilege is also premised upon
the reasonable belief that no-nonsense legal advice generally
depends upon confidentiality, and corporations need such advice if
they are to comply with the law. In this regard, there is no
reason to presume that the White House is different from Upjohn.
The argument that government lawyers, unlike corporate
counsel, are required by statute to report crimes and this fact
distinguishes White House counsel from corporate counsel, is built
upon a false premise. While it is true that 28 U.S.C. 535(b)
requires governmental employees to report crimes, the Department of
Justice has properly reasoned that the statute must be interpreted
in conformity with, not in opposition to, the attorney-client
privilege. Antonin Scalia, Assistant Attorney General, Office of
Legal Counsel, Memorandum for the Deputy Attorney General re:
Disclosure of Confidential Information Received by U.S. Attorney in
the Course of Representing a Federal Employee at 2 (Nov. 30, 1976),
("[N]o information the employee conveyed to the Assistant U.S.
Attorney in connection with the civil action may be used by the
Department to prosecute the employee; nor may it be turned over to
anyone else, such as the employing agency, for use against him."),
reprinted in Appellee's App. Assistant Attorney General Scalia
stated: "Given the absence of any discussion of the subject in the
legislative history [regarding section 535(b)], it would in our
view be inappropriate to infer a congressional purpose to breach
the universally recognized and longstanding confidentiality of the
attorney-client privilege." Id. at 6-7 (emphasis added).
The Department of Justice has consistently followed this
advice. For example, in 1985 OLC stated that the "principal reason
for our conclusion that the attorney-client privilege overrides
535(b) is that confidentiality of communications between client and
lawyer is essential if Department attorneys are to be able to
provide adequate legal representation." Ralph W. Tarr, Acting
Assistant Attorney General, Office of Legal Counsel, Duty of
Government Lawyers Upon Receipt of Incriminating Information in the
Course of an Attorney-Client Relationship With Another Government
Employee at 6 (March 29, 1985) (citing prior opinions of OLC dating
from 1978), reprinted in Appellee's App.
Lastly, the argument is advanced that the White House, but not
a corporation, has a public duty to seek honest government.
Therefore, it is argued, the attorney-client privilege should be
ignored because it impedes an honest government's search for the
truth. The "good government" argument is no basis for denying the
privilege to the White House.
To recognize that the White House has an attorney-client
privilege is not to adopt a "bad government" position though the
existence of such a privilege may inhibit the IC from obtaining all
the information he might like by making a demand upon the White
House. As Upjohn recognized, the attorney-client privilege serves
the public interest by promoting the "valuable efforts of corporate
counsel to ensure their client's compliance with the law,"
especially in those areas of the law that are "hardly . . .
instinctive."
449 U.S. at 392
. The same thing can be said for the
White House, especially because it has a duty to promote honest
government. We should not premise our decision upon the assumption
that the IC is the only guardian of just government.
In short, I reject the argument that the attorney-client
privilege in the hands of the White House is antithetical to the
interests of justice, though I acknowledge that the privilege may
impede the work of the IC. When a prosecutor asks the court for
help in invading the confidences of the President, the proper way
to address the "public interest" question is not to pretend that
the White House lacks the attorney-client privilege. On the
contrary, the court should carefully balance, as Nixon did, the
competing governmental interests, subject to the procedural
protections that Nixon carefully set forth.
e. Summary
Rule 503 is an accurate statement of the common law. The rule
is therefore definitive, and we should apply it.
2. Application of Rule 503
Having determined that Rule 503 is definitive and that the
governmental attorney-client privilege set forth in Rule 503
generally promotes the public interest when applied to the White
House, we should apply the rule to this case. The White House
possesses the attorney-client privilege because all the
prerequisites for application of Rule 503(b)(1) have been
established.
a. White House As "Client" and Mrs. Clinton As "Representative"
Under Rule 503(a)(1), as applied to the evidence here, there
is a "client." The "client" is the White House, acting through
Mrs. Clinton in her representative role as First Lady. As noted
earlier, Rule 503 explicitly extends the attorney-client privilege
to "organizations" or "entities" that are "public" in nature. The
rule also explicitly protects communications involving a
"representative" of a client. Rule 503(b)(1) protects a "client's"
discussions "between himself or his representative and his lawyer."
Mrs. Clinton is surely a "representative" of the White House.
To the extent the IC argues that Mrs. Clinton as First Lady should
not be considered a "representative" of the White House, I reject
the argument as factually and legally unsound.
Factually, the district court found that Mrs. Clinton, "like
other First Ladies before her, has a widely recognized role as an
advisor to the President and is generally considered to be a member
of the President's inner circle." Slip. Op. at 10. The district
court's finding is not clearly wrong.
Legally, "Congress itself has recognized that the President's
spouse acts as the functional equivalent of an assistant to the
President." Association of Am. Physicians & Surgeons, Inc. v.
Clinton, 997 F.2d 898, 904 (D.C. Cir. 1993) (holding Mrs. Clinton
was a "full-time officer or employee of federal government,"
relying on and quoting 3 U.S.C. 105(e) (emphasis in original)).
See also, Att'y Gen.'s Mem., 6 Op. Off. Legal Counsel at 496
(attorney-client privilege covers the "broad scope of White House
advisers in the Office of the President").
As a "member of the President's inner circle" of advisers,
Mrs. Clinton is precisely the type of organizational
"representative" the attorney-client privilege would ordinarily
cover. See, e.g., Upjohn Co. v. United States,
449 U.S. at 387
-95;
In Re Bieter Co., 16 F.3d at 935-40 (granting a writ of mandamus
and sustaining invocation of attorney-client privilege by
partnership; applying Upjohn to a person who, although not an
employee of the partnership, was a consultant; reaching this result
because: (1) communications were made for the purpose of seeking
legal advice; (2) it was reasonable to assume that client's
principal directed consultant's communication with counsel; (3) it
was reasonable to assume that client's principal directed the
communication be made for the purpose of securing legal advice; (4)
subject matter of discussion was within scope of the consultant's
duties as evidenced by what consultant did; and (5) communications
were held in confidence).
b. To Or From A Lawyer
It is undisputed that there were communications to or from
White House counsel to or from the First Lady. See
Rule 503(a)(2)&(b)(1). Upjohn makes clear that the privilege goes
both ways, that is, the privilege protects advice from a lawyer to
a client, and it also protects statements made by a client to a
lawyer for the purpose of informing the lawyer so the lawyer may
give fact-specific advice to the client.
449 U.S. at 389
-91.
Thus, communications from the First Lady to White House counsel are
protected just the same as communications to the First Lady from
White House counsel.
c. Confidential Communication
Given the undisputed facts presented in the declaration of
White House counsel, (IC App. at 27 16, 29-30 20-21), as well
as the facts presented in the declaration of Mrs. Clinton's
personal lawyer, (IC App. at 35-37 5-7), the communications
recorded in the sought-after notes were intended to be
"confidential" within the meaning of Rule 503(a)(4). These
communications were not intended to be revealed to third parties,
and they were not. Furthermore, recognizing (1) the explicit
language of Rule 503, (2) the wide acceptance of a governmental
attorney-client privilege by the federal courts, thoughtful
commentators and the Department of Justice, (3) the Supreme Court's
opinion in Upjohn, and (4) the fact that Nixon did not rule on a
White House assertion of the attorney-client privilege, there was
no reason for the White House, Mrs. Clinton, or the lawyers to
doubt that the communications would be held in confidence.
The presence of Mrs. Clinton's personal lawyer does not change
the result. As will be discussed more fully later, Mrs. Clinton,
in her personal capacity, and the White House, as an entity
represented by the First Lady in her official capacity, shared a
legal "matter of common interest." Rule 503(b)(3) prevents
disclosure of communications "by [a client] or his lawyer to a
lawyer representing another in a matter of common interest."
Among other things, both parties (the White House and
Mrs. Clinton personally) needed to respond carefully and candidly
to the IC; therefore, both required the advice of legal counsel.
As a result, Rule 503(b)(3) explicitly protects communications
between White House counsel and the First Lady even though a lawyer
(Mrs. Clinton's personal lawyer) for another party (Mrs. Clinton in
her personal capacity) was present.
d. Facilitating the Rendition of Legal Services
Finally, the undisputed evidence establishes that the
communications were made for the purpose of "facilitating the
rendition of professional legal services" to the White House as the
"client" within the meaning of Rule 503(b)(1).
The subject of the meeting that generated the first set of
notes pertained to the death of a senior White House official
(Vincent W. Foster) and Mrs. Clinton's activities immediately
afterward. (IC App. at 27 16.) The subject of the meeting that
generated the second set of notes was the discovery of billing
records involving Mrs. Clinton which were found at the White House
and turned over to the IC as relevant evidence in his
investigation. (IC App. at 28-30 18-21, 35-37 5-7.)
Both meetings, and the notes regarding them, pertained to
events that directly involved the institutional functioning of the
White House. It is reasonable to believe that White House counsel
and Mrs. Clinton discussed her role as First Lady after the death
of Mr. Foster and her role as First Lady regarding the discovery of
the billing records. Moreover, the events that were the subject of
these meetings between the First Lady and White House counsel are
directly related to issues the IC was authorized to investigate
concerning the White House as an institution. Slip Op. at 2-3.
(IC authorized to investigate death of former Deputy White House
Counsel Vincent W. Foster and discovery of Rose Law Firm billing
records in the White House residence.)
Under these circumstances, it is reasonable to assume that the
President (or another principal at the White House) directed the
First Lady's communication with White House counsel for the purpose
of securing legal advice for the White House. In Re Beiter Co., 16
F.3d at 938-39 (making similar assumptions in context of a
partnership consultant).
Ignoring for the moment Mrs. Clinton's personal stake in the
matter, the White House as a "client" had a legitimate and
independent institutional reason to pursue the two conferences
between its "representative" (Mrs. Clinton) and its "lawyers"
(White House counsel) for the "purpose of facilitating the
rendition of professional legal services to the client [the White
House]." Rule 503(b)(1). White House lawyers had a legitimate
institutional need to know what the client's "representative" knew
in order to advise the "client," including the client's
"representative," what to do or not do. In particular, the White
House had a legitimate institutional need for the advice of its
lawyers so that, acting through people, including the First Lady,
as it must, the White House could carefully and candidly respond to
the IC.
The decision to turn over billing records to the IC, records
that although discovered at the White House also involved
Mrs. Clinton in her personal capacity, is proof of the White
House's legitimate institutional need to have its lawyers advise
and consult with the "client's representatives," including
individuals such as the First Lady. On January 4, 1996, Jane C.
Sherburne, special counsel to the President, learned that
Ms. Carolyn Huber, a White House employee, had located in the White
House residence a copy of billing records relating to the work
performed by attorneys at the Rose Law firm, including
Mrs. Clinton, for Madison Guaranty. (IC App. at 28 18.)
Ms. Sherburne, in consultation with Mrs. Clinton's personal lawyer,
decided that the records should be promptly turned over to the IC,
the Senate Whitewater Committee, the House Banking Committee, the
FDIC and the RTC, and the records were in fact turned over to those
governmental bodies. (Id.) The production of these documents
caused the IC, among others, to launch an investigation relating to
the finding of the billing records. (Id.)
As the Supreme Court has recognized, the attorney-client
privilege is extended to organizations so the people who ultimately
effect the policy of an organization can comply with the law by
obtaining information from subordinates and then directing those
subordinates to comply with the law. Upjohn,
449 U.S. at 390
-93.
The handling of the billing records here proves why the Upjohn
rationale for extending the attorney-client privilege to
corporations, acting as they must through people, is also
applicable to the White House.
e. Summary
There was (1) a communication to or from Mrs. Clinton in her
role as an "inner-circle" representative of the client White House,
Rule 503(a)(1)&(b)(1); (2) to or from a White House lawyer,
Rule 503(a)(2); (3) intended to be confidential, Rule 503(a)(4);
(4) for the purpose of seeking, obtaining, or providing legal
assistance to the client White House, Rule 503(a)(4)&(b)(1). These
findings establish that the White House has the attorney-client
privilege it asserts. See also In Re Bieter Co., 16 F.3d at 935-
40.
B. Balancing the Public Interest
Assuming the White House possesses the attorney-client
privilege, two issues must be resolved. First, we must decide
whether the IC could ever be entitled to the notes when the White
House asserts the attorney-client privilege. Second, we must
address the issue of what procedural protections must be employed
to protect the White House's legitimate need for confidentiality,
assuming the privilege is not an absolute bar and that production
may be required under certain circumstances. Both inquiries
require a careful balancing of the interests of the White House and
the IC to preserve and protect the public interest that both
governmental entities seek to promote.
1. Nixon's Balancing Test
While the White House generally has the attorney-client
privilege it asserts here, this case is unprecedented. Never have
the courts been confronted with (1) a motion by an independent
counsel (himself a singularly unique creature under federal law) in
a criminal investigation (2) to enforce a grand jury subpoena for
documents directed at the White House (3) under circumstances where
enforcement of the subpoena would pierce the attorney-client
privilege enjoyed by the White House.
Once we decide that the White House has a privilege that the
IC seeks to overcome, the only precedent that matters is United
States v. Nixon,
418 U.S. 683
. A brief summary of that case is
helpful.
The Nixon court held that the public interest requires that
presidential confidentiality be afforded the greatest possible
protection consistent with the fair administration of justice.
Nevertheless, the Court also held that the President was required
to turn over taped conversations to the district court pursuant to
a trial subpoena issued at the request of a special prosecutor
under Federal Rule of Criminal Procedure 17(c), despite the
President's assertion of Executive Privilege.
The special prosecutor had made a preliminary showing of
specific need, relevance, and admissibility before a federal
district judge. The Supreme Court suggested that such a showing
was always required when the President invoked a privilege.
The Court then attempted to balance the twin concepts of
"public interest" asserted by the President and the special
prosecutor. The Court stated that "when the ground for asserting
privilege as to subpoenaed materials sought for use in a criminal
trial is based only on the generalized interest in confidentiality,
it cannot prevail over the fundamental demands of due process of
law in the fair administration of criminal justice." Id. at 713.
As an additional precaution, the Court required the district
court to conduct an in camera examination of the tapes after the
order for production was issued, but before they were turned over
to a special prosecutor. The purpose of this examination was to
decide whether the tapes were actually relevant and admissible.
Now, as in Nixon, both the White House and the IC assert that
the "public interest" warrants a finding for their particular
position. As between these governmental entities, I agree that the
"public interest" is the value to be preserved by our ruling. As
a result, the dispute comes down to this: Is the White House's
attorney-client privilege generally more important than a grand
jury's criminal investigation of the White House?
At this elevated level of abstraction, Nixon teaches that the
President's general need for confidentiality (expressed here by the
attorney-client privilege) is outweighed by a grand jury's need for
evidence of the truth.(4) The Department of Justice has taken a
similar view in the past. See Att'y Gen.'s Mem., 6 Op. Off. Legal
Counsel at 487-88 ("The more generalized the executive interest in
withholding the disputed information, the more likely it is that
the claim of privilege will yield to a specific, articulated need
related to the effective performance by the coordinate branches of
their constitutionally assigned functions.") (citing Nixon).
The White House has not articulated the specific harm to the
public interest that would occur if this subpoena was enforced.
Nixon addressed a similar issue and concluded that "[a]bsent a
claim of need to protect military, diplomatic, or sensitive
national security secrets, we find it difficult to accept the
argument that even the very important interest in confidentiality
of Presidential communications of such material is significantly
diminished by production of such material for in camera inspection
with all the protection that a district court will be obliged to
provide." Id. at 706. Therefore, I would find that, assuming the
procedural protections afforded the White House by Nixon are
observed, the attorney-client privilege may be invaded.(5)
This is not a conclusion to be reached lightly. The White
House has a strong argument that an attorney-client privilege which
is not absolute is no privilege at all. Upjohn,
449 U.S. at 393
.
Moreover, as discussed in more detail later, Nixon specifically
recognized that the attorney-client privilege was an exception to
the general rule that "the public . . . has a right to every man's
evidence."
418 U.S. at 709
-10.
Nevertheless, Nixon ultimately teaches that the number of
times the President's confidences may be invaded will be few. The
only time such confidences may be probed is when the procedural
protections carefully articulated by Nixon have been satisfied.
Accordingly, the attorney-client privilege, while not absolute,
will retain vigor for the White House because the privilege will be
overcome only infrequently and only after painstaking judicial
scrutiny.
2. Nixon's Procedural Protections
The White House suggests the IC is on a "fishing trip." After
all, the IC could simply call Mrs. Clinton to testify before the
grand jury, as he has done in the past, to investigate her
knowledge of the facts. Consequently, it is reasonable to ask: why
does the IC need the privileged notes?
We ought to be very cautious about assuming that the IC needs
to invade the White House attorney-client privilege to obtain the
facts. Upjohn forcefully made this point:
Here the government was free to question the employees
who communicated with Thomas [corporate counsel] and
outside counsel. . . . While it would probably be more
convenient for the government to secure the results . . .
by simply subpoenaing the . . . notes taken by
petitioner's attorneys, such considerations of
convenience do not overcome the policies served by the
attorney-client privilege.
449 U.S. at 396
.
If we require a preliminary showing of specific need,
relevance, and admissibility to a district judge as Nixon clearly
did,
418 U.S. at 700
-02, 713-14, such a requirement would (1)
prevent the use of a grand jury subpoena as part of an improper
"fishing expedition" and (2) insure that the White House attorney-
client privilege was not lightly overturned. Fidelity to Nixon
requires that we approve the invasion of the White House attorney-
client privilege when absolutely necessary, but fidelity to Nixon
also requires that we extend to the White House the protections
that Nixon set forth before such an invasion takes place.
To avoid the preliminary showing requirement, the IC makes
much of the fact that Nixon involved a trial subpoena and this case
does not. The IC further points out that the preliminary showing
requirement of Nixon was (in part) based upon Fed. R. Crim.
P. 17(c) which deals with trial subpoenas. Two responses make the
IC's arguments unpersuasive.
Initially, Nixon repeatedly cautions that the unique interests
of the Presidency, not merely Rule 17(c), warrant active judicial
supervision with a threshold showing of need, relevance, and
admissibility. Id. at 702, 713-16. Quite apart from Rule 17(c),
early precedent required a showing that "the Presidential material
was `essential to the justice of the [pending criminal] case.'" Id.
at 713 (quoting United States v. Burr, 25 F. Cas. 187, 192 (C.C.
Va. 1807) (No. 14,694)) (brackets in Nixon).
Moreover, I am unconvinced by the logic of the IC's argument.
I do not believe a grand jury subpoena is more important than a
criminal trial subpoena such that the procedures required by Nixon
should be cast aside when the IC decides to cause the issuance of
grand jury subpoena aimed at the White House.
Given the difference between a grand jury proceeding and a
trial, the need, relevance and admissibility standard would be
judged considering the nature of the proceeding. For example,
treating impeachment evidence more liberally might be appropriate.
Compare Nixon,
418 U.S. at 701
. Nixon left these issues to the
"sound discretion of the trial court since the necessity for the
subpoena most often turns upon a determination of factual issues."
Id. at 702. Nevertheless, the investigative nature of a grand jury
is no reason for the wholesale disregard of the protections that
Nixon affords the unique status of the Presidency.
Even a favorable ruling for the IC at the first stage of the
proceedings would not mean that the IC would ever see the notes.
Assuming that a threshold showing had been made, Nixon required
that the notes be delivered to the district court, not to the
special prosecutor. Nixon,
418 U.S. at 713
-16. After that, the
district court was required to make an in camera examination of the
notes. Id.
With the notes before it,(6) the court would (1) determine
whether the notes were relevant and admissible; (2) ensure that
they were treated with the sensitivity any Presidential papers
command; and (3) require that the irrelevant portions of the notes
(if any) be promptly returned to the White House under seal. Id.
The White House is entitled to similar protections when served with
a grand jury subpoena that invades the attorney-client privilege,
and I disagree with the refusal to extend such protection to the
White House.
3. Threshold Showing
The White House contends the IC has not made a sufficient
initial showing of specific need, relevance, and admissibility.
The district court did not reach this issue. The IC does not argue
that he satisfied Nixon. He assumes that he was not required to
make such a showing. He does not brief the question of whether he
made a sufficient showing. Accordingly, we need not decide for the
first time on appeal whether the IC accidentally made the required
showing.
III. Mrs. Clinton
Mrs. Clinton has an attorney-client privilege that protects
against disclosure of the notes. However, as noted earlier, this
court should also rule for the first time that the White House
privilege must give way to a grand jury subpoena issued under the
supervision of an independent counsel if the procedural protections
of Nixon are satisfied. Consequently, once Mrs. Clinton has been
advised by virtue of our opinion that she can no longer reasonably
believe her conversations with White House counsel will be held in
confidence in every circumstance, consistent with Rule 503(a)(4)
Mrs. Clinton will consult with White House counsel in the future at
the risk of having her communications disclosed to the grand jury.
A. Mrs. Clinton and the Attorney-Client Privilege
The IC has conceded that in her personal capacity Mrs. Clinton
is entitled to the protections of the attorney-client privilege
regarding discussions with her private lawyers. Slip. Op. at 12
n.5. The IC can take no other position. Rule 503(a)(1)&(b)(1).
The IC appears to argue that Nixon applies to Mrs. Clinton in
her personal capacity. Alternatively, the IC argues that even if
Nixon does not apply to Mrs. Clinton, she lost her personal
privilege by sharing her thoughts with White House lawyers. I
disagree on both counts.
1. Nixon Does Not Apply to Mrs. Clinton
Although it is unclear, the IC may argue not only that Nixon
overcomes the White House privilege, but also that it justifies
disallowing Mrs. Clinton's personal attorney-client privilege to
the extent that there were communications shared with White House
counsel. If this is the IC's contention, I am not persuaded.
Nixon specifically recognized that the attorney-client
privilege was an exception to the general rule that "the public
. . . has a right to every man's evidence," stating:
[T]he Fifth Amendment to the Constitution provides that
no man "shall be compelled in any criminal case to be a
witness against himself." And, generally, an attorney
. . . may not be required to disclose what has been
revealed in professional confidence. These and other
interests are recognized in law by privileges against
forced disclosure, established in the Constitution, by
statute, or at common law.
Id. at 709-10.
Despite Nixon's recognition of the transcendent value of the
attorney-client privilege, it is a reasonable extension of Nixon to
pierce the organizational attorney-client privilege asserted by the
White House. Such an extension is appropriate because the Nixon
opinion instructs that generalized governmental confidentiality
privileges are on balance less important than the government's
search for the truth when both governmental interests are compared
with the "public interest."
It is quite a different thing to retroactively deny the
protection of the attorney-client privilege to an individual like
Mrs. Clinton based on the "public interest." This distinction is
important because the Fifth and Sixth Amendments protect Mrs.
Clinton, unlike the White House, and a violation of her attorney-
client privilege may also violate her constitutional rights. See,
e.g., O'Brien v. United States,
386 U.S. 345
(1967) (although they
were not revealed to prosecutors, governmental interception of
conversations between a defendant and his lawyer required vacation
of conviction) (relying upon Black v. United States,
385 U.S. 26
(1966)). Cf. Weatherford v. Bursey,
429 U.S. 545, 557
(1977)
(explaining and distinguishing O'Brien and Black and stating
"[t]his is not a situation where the State's purpose was to learn
what it could about the defendant's defense plans" by intruding "on
the lawyer-client relationship . . .").
In addition, and more significantly, the dispute between the
White House and the IC solely involves the "public interest," while
the dispute between the IC and Mrs. Clinton pits the "public
interest" against "individual liberties," constitutional and
otherwise. Nixon did not attempt to balance "public" and
"individual" interests, and we thus lack any meaningful guidance on
the matter.
Given the Supreme Court's historic respect for the attorney-
client privilege(7) and the Nixon opinion's recognition that the
attorney-client privilege normally trumps the rule that "the public
. . . has a right to every man's evidence," we should not expand
Nixon beyond disputes between governmental entities such as the
White House and the IC.
2. The "Common Interest" Provision Protects Mrs. Clinton
To avoid the difficulty of applying Nixon to Mrs. Clinton, the
IC alternatively argues that even if the communications evidenced
by the notes are "confidential" within the meaning of
Rule 503(a)(4), Mrs. Clinton and her personal lawyers shared their
thoughts with White House lawyers, and Mrs. Clinton lost her
personal privilege as a result. I disagree.
The rule protects otherwise "confidential" communications made
by the "[client] or his lawyer to a lawyer representing another in
a matter of common interest." Rule 503(b)(3). The "common
interest" provision of Rule 503 "is in accord with previous federal
practice in recognizing a privilege both for inter-attorney
communications and joint conferences where the client communicates
to the other attorney directly." 2 Jack B. Weinstein et al.,
Weinstein's Evidence 503[06], at 503-99 (footnote omitted).
Accord John Morrell & Co. v. Local Union 304A, 913 F.2d 544, 555-56
(8th Cir. 1990) (recognizing and sustaining "joint defense"
privilege as to an internal memorandum written by corporate general
counsel that was shared with codefendants in another case), cert.
denied,
500 U.S. 905
(1991) (citations omitted). See also United
States v. American Tel. & Tel. Co., 642 F.2d 1285, 1300 (D.C. Cir.
1980) (since "MCI shares common interests with the United States,"
MCI did not waive the work product privilege by sharing documents
with the government).
The rule applies "not only if litigation is current or
imminent but, consistently with the rest of the Standard, whenever
the communication was made in order to facilitate the rendition of
legal services to each of the clients involved in the conference."
2 Jack B. Weinstein et al., Weinstein's Evidence 503[06], at 503-
99 (footnote omitted). Drafters of the "common interest" provision
of the rule "intended the privilege to be broadly construed in
multi-party situations." Id. at 503-100 (footnote omitted).
The evidence and the findings of the district court establish
that there were two "clients," the White House, represented by
Mrs. Clinton in her role as First Lady, and Mrs. Clinton
personally; each "client" was in turn represented by separate
lawyers regarding matters of "common interest." Consider again the
apparent joint decision of the White House and Mrs. Clinton to turn
over to the IC the billing records found at the White House. As a
categorical matter, the "common interest" provision of
Rule 503(b)(3) plainly applies to Mrs. Clinton and the White House
because both legitimately needed the advice of separate lawyers in
order to carefully and candidly respond to the IC, among others.
The IC argues that the White House does not have the attorney-
client privilege, or that if it does, Nixon overcomes the privilege
and Mrs. Clinton cannot personally claim that the "common interest"
rule protects her communications. The IC asserts that Mrs. Clinton
loses the protection of the attorney-client privilege once the
White House does. This argument fails for two reasons.
As demonstrated earlier, the White House has the attorney-
client privilege. Since the White House has always possessed the
privilege, the IC cannot properly argue that Mrs. Clinton loses the
"common interest" protection because the White House lacked the
attorney-client privilege in the first place. The White House had
the privilege then and has it now. Nixon may overcome, but it does
not erase, the White House privilege.
Next, I agree, as indicated earlier, that, by extension of the
Nixon reasoning, the White House attorney-client privilege must
give way under certain very limited circumstances. However, a
precedent making extension of Nixon to the White House's attorney-
client claim does not justify denying Mrs. Clinton the protection
of her personal attorney-client privilege safeguarded by the
"common interest" provisions of the rule.
The IC has cited no case, nor have I found one, remotely
suggesting that a party otherwise protected by the "common
interest" provision of the attorney-client privilege loses that
protection because a court determines after the fact for the first
time that the other party's attorney-client privilege must, on
balance, give way. We have pointedly recognized that it is
"fundamental that the `joint defense privilege cannot be waived
without the consent of all parties to the defense.'" John Morrell
& Co., 913 F.2d at 556 (citation omitted) (emphasis added).
Mrs. Clinton, not this court retroactively applying a first time
ruling regarding the White House, must waive the privilege before
the grand jury may examine the notes the IC seeks.
B. Mrs. Clinton, the White House, and the Future
Rule 503(a)(4) states that a "communication is `confidential'
if not intended to be disclosed to third persons . . . ." The
committee notes state that "intent is inferable from the
circumstances." 2 Jack B. Weinstein et al., Weinstein's Evidence
503(a)(4)[01], at 503-39. See 56 F.R.D. 238 advisory committee's
note.
Once aware by virtue of our opinion that her conversations
with White House counsel may be disclosed to the grand jury because
the White House may be obligated to respond to a subpoena under
certain limited conditions, if Mrs. Clinton continues to have such
conversations in the future she can no longer "intend" for the
privilege to protect these conversations from a grand jury
subpoena. See, e.g., 2 Jack B. Weinstein et al., Weinstein's
Evidence 503(a)(4)[01], at 503-39 & n.2 (citing, among other
cases, Hollings v. Powell, 773 F.2d 191, 196-97 (8th Cir. 1985),
cert. denied,
475 U.S. 1119
(1986) (where mayor later testified to
conversations with city attorney in a suit brought against mayor
and city, the conversation was not intended to be confidential and
the privilege was waived)).
IV. Conclusion
As between the IC and the White House, we must faithfully
apply the Nixon decision because there is insufficient reason to
distinguish that case from this one. As between the IC and
Mrs. Clinton, we should understand the limits of the Nixon
decision, and respect the fact that we are dealing with the rights
of an individual. I would affirm the district court's prudent
refusal to enforce the subpoena.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
**FOOTNOTES**
(1)
The Honorable Richard G. Kopf, United States District Judge
for the District of Nebraska, sitting by designation.
(3)
Judge Kopf's dissent relies too heavily, we believe, on the
precise wording of Proposed Rule 503. Although we have found the
proposed rule accurate in other cases that have come before us,
see In re Bieter Co., 16 F.3d at 935, it bears repeating that we
are instructed by Rule 501 to interpret the attorney-client
privilege "in light of reason and experience" and not solely in
light of the rule promulgated by the Supreme Court in 1972. Even
the Court itself at times has interpreted privileges differently
from the rules it proposed. See Jaffee v. Redmond, 116 S. Ct.
1923, 1931 (1996) (concluding that psychotherapist-patient
privilege encompasses communications to social workers, contrary
to Proposed Rule 504); Trammel v. United States,
445 U.S. 40
, 51-
53 (1980) (recognizing marital privilege entirely different from
Proposed Rule 505).
(4)
The American Law Institute has approved the chapter of
Proposed Final Draft No. 1 of the Restatement governing the
attorney-client privilege and the work product doctrine. See 64
U.S.L.W. 2739 (May 28, 1996).
(5)
The White House correctly points out that a number of the
states adopting the Uniform Rules have omitted the limitation in
Rule 502(d)(6). See, e.g., Neb. Rev. Stat. _ 27-503(4) (1995).
These omissions, however, prove no more than does the lack of
specific language in Proposed Federal Rule 503.
(7)
See Scott Paper Co. v. United States, 943 F. Supp. 489,
498-500 (E.D. Pa.) (Magistrate Judge) (dicta), aff'd, 943 F.
Supp. 501 (E.D. Pa. 1996); Donovan v. Teamsters Union Local 25,
103 F.R.D. 550, 552-53 (D. Mass. 1984); SEC v. World-Wide Coin
Investments, Ltd., 92 F.R.D. 65, 66-67 (N.D. Ga. 1981); Jupiter
Painting Contracting Co. v. United States, 87 F.R.D. 593, 598
(E.D. Pa. 1980); Thill Sec. Corp. v. New York Stock Exch., 57
F.R.D. 133, 138-39 (E.D. Wis. 1972); Detroit Screwmatic Co. v.
United States, 49 F.R.D. 77, 78 (S.D.N.Y. 1970); United States v.
Anderson, 34 F.R.D. 518, 522-23 (D. Colo. 1963); cf. In re Allen,
106 F.3d 582, 600 n.8 (4th Cir. 1997) (noting that private party
did not challenge applicability of privilege to government
agency); Mitzner v. Sobol, 136 F.R.D. 359, 360-62 (S.D.N.Y. 1991)
(suggesting that state agency may assert privilege) (dicta);
Bruce v. Christian, 113 F.R.D. 554, 560 (S.D.N.Y. 1986) (holding
that city agency may assert privilege); State ex rel. Babbitt v.
Arnold, 548 P.2d 426, 428 (Ariz. Ct. App. 1976) (holding that
county may assert privilege).
(8)
Some courts have interpreted Branzburg as establishing a
qualified news reporter's privilege. See Shoen v. Shoen, 5 F.3d
1289, 1292 & n.5 (9th Cir. 1993). But see In re Grand Jury
Proceedings (Storer), 810 F.2d 580, 583-86 (6th Cir. 1987)
(rejecting this theory). Although the Ninth Circuit in Shoen
cited our opinion in Cervantes for support, we believe this
question is an open one in this Circuit.
(9)
The White House does suggest that the OIC has not shown a
"demonstrated, specific need" for the materials subpoenaed by the
grand jury, citing Nixon,
418 U.S. at 713
. We doubt that this
language from Nixon constitutes the proper need threshold even on
the facts of that case, as it appears in a general discussion,
rather than in the Court's specific analysis of Fed. R. Crim. P.
17(c). See id. at 700. In a grand jury case, the burden is on
the subpoenaed party to demonstrate "that there is no reasonable
possibility that the category of materials the Government seeks
will produce information relevant to the general subject of the
grand jury's investigation." United States v. R. Enters., Inc.,
498 U.S. 292, 301
(1991); see also In re Grand Jury Proceedings
(Cheetham), 791 F.2d 663, 665-66 (8th Cir. 1986) (recognizing
that no showing of need for information is required). The White
House's own descriptions of the notes at issue in this case are
sufficient to demonstrate their relevance to the OIC's
investigation.
(11)
See United States v. Mullen & Co., 776 F. Supp. 620, 621
(D. Mass. 1991) (dicta); United States v. Tyler, 745 F. Supp.
423, 425-26 (W.D. Mich. 1990); United States v. Boffa, 513 F.
Supp. 517, 523 (D. Del. 1981) (dicta). See generally Restatement
_ 122(1).
(12)
See United States v. Hart, No. Crim. A. 92-219, 1992 WL
348425, at *1-2 (E.D. La. Nov. 6, 1992); cf. Wylie v. Marley Co.,
891 F.2d 1463, 1471-72 (10th Cir. 1989) (finding no abuse of
discretion in district court's application of privilege where
relationship of employee to employer's attorney was confusing).
(13)
See United States v. Moscony, 927 F.2d 742, 752 (3d Cir.),
cert. denied,
501 U.S. 1211
(1991); Griffith v. Davis, 161 F.R.D.
687, 694-95 (C.D. Cal. 1995). See generally Restatement _ 121.
(14)
Mrs. Clinton bases her argument in part on the
confidentiality obligations of attorneys licensed in the District
of Columbia. See D.C. Rules of Professional Conduct Rule 1.6
(1996). The commentary to that very rule, however, states that
it is not intended to govern the scope of the attorney-client
privilege, see id. cmt. 5, and we have previously held that
ethical rules do not alter the privilege. See United States v.
Sindel, 53 F.3d 874, 877 (8th Cir. 1995).
(15)
Work product immunity may be asserted by either the client
or the attorney. See, e.g., In re Sealed Case, 676 F.2d 793, 809
& n.56 (D.C. Cir. 1982).
(16)
Even if there is a common-interest work product doctrine,
see United States v. American Tel. & Tel. Co., 642 F.2d 1285,
1299-1300 (D.C. Cir. 1980), our earlier holding that the White
House and Mrs. Clinton share no relevant common interest makes
the doctrine inapplicable here.
(1)
This draft received tentative approval in May, 1996.
American Law Institute Nears Finish Line on Lawyer Ethics,
Product Liability Projects, 64 U.S.L.W. 2739 (May 28, 1996).
(2)
2Even those commentators who question whether the attorney-
client privilege was extended to governments at "common law" agree
"most" courts have recognized that governmental entities are
entitled to the privilege. 24 Charles Alan Wright & Kenneth W.
Graham, Jr., Federal Practice and Procedure, _ 5475, at 125 (1986).
These commentators likewise predict the courts will continue to
recognize that the privilege extends to governmental entities. Id.
at 128. ("[I]t seems likely that some form of privilege for
governmental clients will be recognized by federal courts applying
Rule 501.") (citations omitted.)
(3)
In addition, the Court held that to the extent they
reflected the mental impressions of counsel, the documents were
also protected from disclosure by the "work product" doctrine.
Id. at 401-02. To the extent the notes in this case are "work
product," they too would be protected under the "work product"
doctrine of Upjohn.
(4)
The same analysis justifies piercing the work product
"privilege."
(5)
However, as did the Supreme Court in Nixon, I would limit
the holding to criminal investigations involving special
prosecutors (and not to civil cases or congressional hearings).
Nixon,
418 U.S. at 712
n.19.
(6)
Although the district court could seek the help of the IC
and White House counsel, it could not make a disclosure until the
proper examination had been completed. Id. at 715 n.21.
(7)
See, e.g., Upjohn,
449 U.S. at 389
(stating "[t]he
attorney-client privilege is the oldest of the privileges for
confidential communications known to the common law"); Hunt v.
Blackburn,
128 U.S. 464, 470
(1888) (stating the privilege "is
founded upon the necessity, in the interest and administration of
justice, of the aid of persons having knowledge of the law and
skilled in its practice, which assistance can only be safely and
readily availed
of when free from the consequences or the apprehension of
disclosure").