In Re: Bruce Lindsey

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued June 29, 1998 Decided July 27, 1998

No. 98-3060

In re: Bruce R. Lindsey (Grand Jury Testimony)

Consolidated with

Nos. 98-3062 and 98-3072

Appeals from the United States District Court

for the District of Columbia

(No. 98ms00095)

W. Neil Eggleston argued the cause for appellant the Office

of the President, with whom Timothy K. Armstrong, Julie K.

Brof and Charles F.C. Ruff, Counsel to the President, were

on the briefs.

David E. Kendall argued the cause for appellant William J.

Clinton, with whom Nicole K. Seligman, Max Stier, Robert S.

Bennett, Carl S. Rauh, Amy Sabrin and Katharine S. Sexton

were on the briefs.

Douglas N. Letter, Attorney, U.S. Department of Justice,

argued the cause for amicus curiae the Attorney General,

with whom Janet Reno, Attorney General, Frank W. Hunger,

Assistant Attorney General, Stephen W. Preston, Deputy

Assistant Attorney General, and Stephanie R. Marcus, Attor-

ney, were on the brief.

Kenneth W. Starr, Independent Counsel and Brett M.

Kavanaugh, Associate Independent Counsel, argued the

causes for appellee the United States, with whom Joseph M.

Ditkoff, Associate Independent Counsel, was on the brief.

Before: Randolph, Rogers and Tatel, Circuit Judges.

Opinion for the Court filed Per Curiam.

Opinion dissenting from Part II and concurring in part and

dissenting in part from Part III filed by Circuit Judge Tatel.

Per Curiam: In these expedited appeals, the principal

question is whether an attorney in the Office of the President,

having been called before a federal grand jury, may refuse,

on the basis of a government attorney-client privilege, to

answer questions about possible criminal conduct by govern-

ment officials and others. To state the question is to suggest

the answer, for the Office of the President is a part of the

federal government, consisting of government employees do-

ing government business, and neither legal authority nor

policy nor experience suggests that a federal government

entity can maintain the ordinary common law attorney-client

privilege to withhold information relating to a federal criminal

offense. The Supreme Court and this court have held that

even the constitutionally based executive privilege for presi-

dential communications fundamental to the operation of the

government can be overcome upon a proper showing of need

for the evidence in criminal trials and in grand jury proceed-

ings. See United States v. Nixon, 418 U.S. 683, 707-12

(1974); In re Sealed Case (Espy), 121 F.3d 729, 736-38 (D.C.

Cir. 1997). In the context of federal criminal investigations

and trials, there is no basis for treating legal advice different-

ly from any other advice the Office of the President receives

in performing its constitutional functions. The public interest

in honest government and in exposing wrongdoing by govern-

ment officials, as well as the tradition and practice, acknowl-

edged by the Office of the President and by former White

House Counsel, of government lawyers reporting evidence of

federal criminal offenses whenever such evidence comes to

them, lead to the conclusion that a government attorney may

not invoke the attorney-client privilege in response to grand

jury questions seeking information relating to the possible

commission of a federal crime. The extent to which the

communications of White House Counsel are privileged

against disclosure to a federal grand jury depends, therefore,

on whether the communications contain information of possi-

ble criminal offenses. Additional protection may flow from

executive privilege [[

]].*

I.

On January 16, 1998, at the request of the Attorney

General, the Division for the Purpose of Appointing Indepen-

dent Counsels issued an order expanding the prosecutorial

jurisdiction of Independent Counsel Kenneth W. Starr. Pre-

viously, the main focus of Independent Counsel Starr's inqui-

ry had been on financial transactions involving President

Clinton when he was Governor of Arkansas, known popularly

as the Whitewater inquiry. The order now authorized Starr

to investigate "whether Monica Lewinsky or others suborned

perjury, obstructed justice, intimidated witnesses, or other-

wise violated federal law" in connection with the civil lawsuit

against the President of the United States filed by Paula

Jones. In re Motions of Dow Jones & Co., 142 F.3d 496,

497-98 (D.C. Cir.), petition for cert. filed, 66 U.S.L.W. 3790

(U.S. June 3, 1998) (No. 97-1959) (quoting order). "Thereaf-

ter, a grand jury here began receiving evidence about Monica

Lewinsky and President Clinton, and others.... " Id. at 498.

On January 30, 1998, the grand jury issued a subpoena to

Bruce R. Lindsey, an attorney admitted to practice in Arkan-

sas. Lindsey currently holds two positions: Deputy White

__________

* Double brackets signify sealed material.

House Counsel and Assistant to the President. On February

18, February 19, and March 12, 1998, Lindsey appeared

before the grand jury and declined to answer certain ques-

tions on the ground that the questions represented informa-

tion protected from disclosure by a government attorney-

client privilege applicable to Lindsey's communications

with the President as Deputy White House Counsel,

as well as by executive privilege, and [[

]]. Lindsey also claimed work product protec-

tions related to the attorney-client privilege[[ ]].

On March 6, 1998, the Independent Counsel moved to

compel Lindsey's testimony. The district court granted that

motion on May 4, 1998. The court concluded that the Presi-

dent's executive privilege claim failed in light of the Indepen-

dent Counsel's showing of need and unavailability. See In re

Sealed Case (Espy), 121 F.3d at 754. It rejected Lindsey's

government attorney-client privilege claim on similar

grounds, ruling that the President possesses an attorney-

client privilege when consulting in his official capacity with

White House Counsel, but that the privilege is qualified in the

grand jury context and may be overcome upon a sufficient

showing of need for the subpoenaed communications and

unavailability from other sources. [[

]].

[[ ]] the Office of the President [[

]] appealed the order granting the motion to

compel Lindsey's testimony, challenging the district court's

construction of both the government attorney-client privilege

and [[ ]]. The Independent Counsel then petitioned

the Supreme Court to review the district court's decision on

those issues, among others, before judgment by this court.

On June 4, 1998, the Supreme Court denied certiorari, while

indicating its expectation that "the Court of Appeals will

proceed expeditiously to decide this case." United States v.

Clinton, 118 S. Ct. 2079 (1998). Following an expedited

briefing schedule, on June 29, 1998, this court heard argu-

ment on the attorney-client issues. Neither the Office of the

President nor the President in his personal capacity has

appealed the district court's ruling on executive privilege. In

Part II we address the availability of the government attor-

ney-client privilege; [[

]].

II.

The attorney-client privilege protects confidential communi-

cations made between clients and their attorneys when the

communications are for the purpose of securing legal advice

or services. See In re Sealed Case, 737 F.2d 94, 98-99 (D.C.

Cir. 1984). It "is one of the oldest recognized privileges for

confidential communications." Swidler & Berlin v. United

States, No. 97-1192, 1998 WL 333019, at *3 (U.S. June 25,

1998).

The Office of the President contends that Lindsey's com-

munications with the President and others in the White

House should fall within this privilege both because the

President, like any private person, needs to communicate

fully and frankly with his legal advisors, and because the

current grand jury investigation may lead to impeachment

proceedings, which would require a defense of the President's

official position as head of the executive branch of govern-

ment, presumably with the assistance of White House Coun-

sel. The Independent Counsel contends that an absolute

government attorney-client privilege would be inconsistent

with the proper role of the government lawyer and that the

President should rely only on his private lawyers for fully

confidential counsel.

Federal courts are given the authority to recognize privi-

lege claims by Rule 501 of the Federal Rules of Evidence,

which provides that

[e]xcept as otherwise required by the Constitution of the

United States or provided by Act of Congress or in rules

prescribed by the Supreme Court pursuant to statutory

authority, the privilege of a witness, person, government,

State, or political subdivision thereof shall be 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. Although Rule 501 manifests a congres-

sional desire to provide the courts with the flexibility to

develop rules of privilege on a case-by-case basis, see Tram-

mel v. United States, 445 U.S. 40, 47 (1980), the Supreme

Court has been "disinclined to exercise this authority expan-

sively," University of Pa. v. EEOC, 493 U.S. 182, 189 (1990).

"[T]hese exceptions to the demand for every man's evidence

are not lightly created nor expansively construed, for they are

in derogation of the search for truth." Nixon, 418 U.S. at

710; see also Trammel, 445 U.S. at 50. Consequently, feder-

al courts do not recognize evidentiary privileges unless doing

so "promotes sufficiently important interests to outweigh the

need for probative evidence." Id. at 51.

The Supreme Court has not articulated a precise test to

apply to the recognition of a privilege, but it has "placed

considerable weight upon federal and state precedent," In re

Sealed Case (Secret Service), No. 98-3069, 1998 WL 370584,

at *3 (D.C. Cir. July 7, 1998), and on the existence of "a

'public good transcending the normally predominant principle

of utilizing all rational means for ascertaining the truth.' "

Jaffee v. Redmond, 518 U.S. 1, 9 (1996) (quoting Trammel,

445 U.S. at 50 (quoting Elkins v. United States, 364 U.S. 206,

234 (1960) (Frankfurter, J., dissenting))). That public good

should be shown "with a high degree of clarity and certainty."

In re Sealed Case (Secret Service), 1998 WL 370584, at *4.

A.

Courts, commentators, and government lawyers have long

recognized a government attorney-client privilege in several

contexts. Much of the law on this subject has developed in

litigation about exemption five of the Freedom of Information

Act ("FOIA"). See 5 U.S.C. s 552(b)(5) (1994). Under that

exemption, "intra-agency memorandums or letters which

would not be available by law to a party other than an agency

in litigation with the agency" are excused from mandatory

disclosure to the public. Id.; see also S. Rep. No. 89-813, at 2

(1965) (including within exemption five "documents which

would come within the attorney-client privilege if applied to

private parties"). We have recognized that "Exemption 5

protects, as a general rule, materials which would be protect-

ed under the attorney-client privilege." Coastal States Gas

Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir.

1980). "In the governmental context, the 'client' may be the

agency and the attorney may be an agency lawyer." Tax

Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997); see also

Brinton v. Department of State, 636 F.2d 600, 603-04 (D.C.

Cir. 1980). In Lindsey's case, his client--to the extent he

provided legal services--would be the Office of the Presi-

dent.1

Exemption five does not itself create a government attor-

ney-client privilege. Rather, "Congress intended that agen-

cies should not lose the protection traditionally afforded

through the evidentiary privileges simply because of the

passage of the FOIA." Coastal States, 617 F.2d at 862. In

discussing the government attorney-client privilege applicable

to exemption five, we have mentioned the usual advantages:

the attorney-client privilege has a proper role to play in

exemption five cases.... In order to ensure that a

client receives the best possible legal advice, based on a

full and frank discussion with his attorney, the attorney-

client privilege assures him that confidential communica-

tions to his attorney will not be disclosed without his

consent. We see no reason why this same protection

__________

1 [[

]]

should not be extended to an agency's communications

with its attorneys under exemption five.

Mead Data Cent., Inc. v. United States Dep't of Air Force,

566 F.2d 242, 252 (D.C. Cir. 1977). Thus, when "the Govern-

ment is dealing with its attorneys as would any private party

seeking advice to protect personal interests, and needs the

same assurance of confidentiality so it will not be deterred

from full and frank communications with its counselors,"

exemption five applies. Coastal States, 617 F.2d at 863.

Furthermore, the proposed (but never enacted) Federal

Rules of Evidence concerning privileges, to which courts have

turned as evidence of common law practices, see, e.g., United

States v. Gillock, 445 U.S. 360, 367-68 (1980); In re Bieter

Co., 16 F.3d 929, 935 (8th Cir. 1994); Linde Thomson Lang-

worthy Kohn & Van Dyke v. Resolution Trust Corp., 5 F.3d

1508, 1514 (D.C. Cir. 1993); United States v. (Under Seal),

748 F.2d 871, 874 n.5 (4th Cir. 1984); United States v.

Mackey, 405 F. Supp. 854, 858 (E.D.N.Y. 1975), recognized a

place for a government attorney-client privilege. Proposed

Rule 503 defined "client" for the purposes of the attorney-

client privilege to include "a person, public officer, or corpora-

tion, 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 to the proposed

rule explained that "[t]he definition of 'client' includes govern-

mental bodies." Id. advisory committee's note. The Restate-

ment also extends attorney-client privilege to government

entities. See Restatement (Third) of the Law Governing

Lawyers s 124 (Proposed Final Draft No. 1, 1996) [hereinaf-

ter Restatement].

The practice of attorneys in the executive branch reflects

the common understanding that a government attorney-client

privilege functions in at least some contexts. The Office of

Legal Counsel in the Department of Justice concluded in 1982

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 com-

munications 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.

Theodore B. Olsen, Assistant Attorney General, Office of

Legal Counsel, Confidentiality of the Attorney General's

Communications in Counseling the President, 6 Op. Off.

Legal Counsel 481, 495 (1982). The Office of Legal Counsel

also concluded that when government attorneys stand in the

shoes of private counsel, representing federal employees sued

in their individual capacities, confidential communications be-

tween attorney and client are privileged. See Antonin Scalia,

Assistant Attorney General, Office of Legal Counsel, Disclo-

sure of Confidential Information Received by U.S. Attorney

in the Course of Representing a Federal Employee (Nov. 30,

1976); Ralph W. Tarr, Acting Assistant Attorney General,

Office of Legal Counsel, Duty of Government Lawyer Upon

Receipt of Incriminating Information in the Course of an

Attorney-Client Relationship with Another Government Em-

ployee (Mar. 29, 1985); see also 28 C.F.R. s 50.15(a)(3)

(1998).

B.

Recognizing that a government attorney-client privilege

exists is one thing. Finding that the Office of the President

is entitled to assert it here is quite another.

It is settled law that the party claiming the privilege bears

the burden of proving that the communications are protected.

As oft-cited definitions of the privilege make clear, only

communications that seek "legal advice" from "a professional

legal adviser in his capacity as such" are protected. See 8

John Henry Wigmore, Evidence in Trials at Common Law

s 2292, at 554 (McNaughton rev. 1961). Or, in a formulation

we have adopted, the privilege applies only if the person to

whom the communication was made is "a member of the bar

of a court" who "in connection with th[e] communication is

acting as a lawyer" and the communication was made "for the

purpose of securing primarily either (i) an opinion on law or

(ii) legal services or (iii) assistance in some legal proceeding."

In re Sealed Case, 737 F.2d at 98-99 (quoting United States

v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59

(D.Mass. 1950)).

On the record before us, it seems likely that at least some

of the conversations for which Lindsey asserted government

attorney-client privilege did not come within the formulation

just quoted. [[

]]. Both of these subjects arose from the expanded juris-

diction of the Independent Counsel, which did not become

public until January 20, 1998. Before then, any legal advice

Lindsey rendered in connection with Jones v. Clinton, a

lawsuit involving President Clinton in his personal capacity,

likely could not have been covered by government attorney-

client privilege.2 [[

]]. According to the Restatement, "consultation with one

admitted to the bar but not in that other person's role as

__________

2 We do not foreclose a showing by Lindsey when he appears

again before the grand jury that prior to January 20, 1998, he gave

legal advice as Deputy White House Counsel in regard to how

lawyer is not protected." Restatement s 122 cmt. c.

"[W]here one consults an attorney not as a lawyer but as a

friend or as a business adviser or banker, or negotiator ...

the consultation is not professional nor the statement privi-

leged." 1 McCormick on Evidence s 88, at 322-24 (4th ed.

1992) (footnotes omitted). Thus Lindsey's advice on political,

strategic, or policy issues, valuable as it may have been,

would not be shielded from disclosure by the attorney-client

privilege.

As for conversations after January 20th, the Office of the

President must "present the underlying facts demonstrating

the existence of the privilege" in order to carry its burden.

See FTC v. Shaffner, 626 F.2d 32, 37 (7th Cir. 1980). A

blanket assertion of the privilege will not suffice. Rather,

"[t]he proponent must conclusively prove each element of the

privilege." SEC v. Gulf & Western Indus., 518 F. Supp. 675,

682 (D.D.C. 1981). In response to the Independent Counsel's

questions, Lindsey invariably asserted executive privilege and

attorney-client privilege. On this record, it is impossible to

determine whether Lindsey believed that both privileges

applied or whether he meant to invoke them on an "either/or"

basis. As we have said, the district court's rejection of the

executive privilege claim has not been appealed. With this

privilege out of the picture, the Office of the President had to

show that Lindsey's conversations "concerned the seeking of

legal advice" and were between President Clinton and Lind-

sey or between others in the White House and Lindsey while

Lindsey was "acting in his professional capacity" as an attor-

ney. Shaffner, 626 F.2d at 37.

With regard to most of the communications that were the

subject of questions before the grand jury, it does not appear

to us that any such showing was made in the grand jury by

Lindsey or in the district court by the Office of the President

in the proceedings leading to the order to compel his testimo-

ny. This may be attributable to the parties' focus in the

district court. The arguments on both sides centered on

whether any attorney-client privilege protected the conversa-

tions about which Lindsey was asked, not on whether--if the

privilege could be invoked--the conversations were covered

__________

private litigation involving the President was affecting the Office of

the President.

by it. In light of this, and in view of the Administration's

abandonment of its executive privilege claim, Lindsey would

have to return to the grand jury no matter how we ruled on

the government attorney-client privilege claim.

There is, however, no good reason for withholding decision

on the issues now before us. We have little doubt that at

least one of Lindsey's conversations subject to grand jury

questioning "concerned the seeking of legal advice" and was

between President Clinton and Lindsey or between others in

the White House and Lindsey while Lindsey was "acting in

his professional capacity" as an attorney. See id. [[

]]. The issue whether the government attorney-

client privilege could be invoked in these circumstances is

therefore ripe for decision.

Moreover, the case has been fully briefed and argued. The

Supreme Court has asked us to expedite our disposition of

these appeals. Sending this case back for still another round

of grand jury testimony, assertions of privileges and immuni-

ties, a district court judgment, and then another appeal would

be inconsistent with the Supreme Court's request and would

do nothing but prolong the grand jury's investigation. The

parties, we believe, are entitled now to a ruling to govern

Lindsey's future grand jury appearance.

We therefore turn to the question whether an attorney-

client privilege permits a government lawyer to withhold from

a grand jury information relating to the commission of possi-

ble crimes by government officials and others. Although the

cases decided under FOIA recognize a government attorney-

client privilege that is rather absolute in civil litigation, those

cases do not necessarily control the application of the privi-

lege here. The grand jury, a constitutional body established

in the Bill of Rights, "belongs to no branch of the institutional

Government, serving as a kind of buffer or referee between

the Government and the people," United States v. Williams,

504 U.S. 36, 47 (1992), while the Independent Counsel is by

statute an officer of the executive branch representing the

United States. For matters within his jurisdiction, the Inde-

pendent Counsel acts in the role of the Attorney General as

the country's chief law enforcement officer. See 28 U.S.C.

s 594(a) (1994). Thus, although the traditional privilege be-

tween attorneys and clients shields private relationships from

inquiry in either civil litigation or criminal prosecution, com-

peting values arise when the Office of the President resists

demands for information from a federal grand jury and the

nation's chief law enforcement officer. As the drafters of the

Restatement recognized, "More particularized rules may be

necessary where one agency of government claims the privi-

lege 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 s 124 cmt. b. For these reasons,

others have agreed that such "considerations" counsel against

"expansion of the privilege to all governmental entities" in all

cases. 24 Charles Alan Wright & Kenneth W. Graham, Jr.,

Federal Practice and Procedure s 5475, at 125 (1986).

The question whether a government attorney-client privi-

lege applies in the federal grand jury context is one of first

impression in this circuit, and the parties dispute the import

of the lack of binding authority. The Office of the President

contends that, upon recognizing a government attorney-client

privilege, the court should find an exception in the grand jury

context only if practice and policy require. To the contrary,

the Independent Counsel contends, in essence, that the justi-

fication for any extension of a government attorney-client

privilege to this context needs to be clear. These differences

in approach are not simply semantical: they represent differ-

ent versions of what is the status quo. To argue about an

"exception" presupposes that the privilege otherwise applies

in the federal grand jury context; to argue about an "exten-

sion" presupposes the opposite. In Swidler & Berlin, the

Supreme Court considered whether, as the Independent

Counsel contended, it should create an exception to the

personal attorney-client privilege allowing disclosure of confi-

dences after the client's death. See Swidler & Berlin, 1998

WL 333019, at *2. After finding that the Independent Coun-

sel was asking the Court "not simply to 'construe' the privi-

lege, but to narrow it, contrary to the weight of the existing

body of caselaw," the Court concluded that the Independent

Counsel had not made a sufficient showing to warrant the

creation of such an exception to the settled rule. Id. at *7.

In the instant case, by contrast, there is no such existing

body of caselaw upon which to rely and no clear principle that

the government attorney-client privilege has as broad a scope

as its personal counterpart. Because the "attorney-client

privilege must be 'strictly confined within the narrowest

possible limits consistent with the logic of its principle,' " In

re Sealed Case, 676 F.2d 793, 807 n.44 (D.C. Cir. 1982)

(quoting In re Grand Jury Investigation, 599 F.2d 1224, 1235

(3d Cir. 1979)); accord Trammel, 445 U.S. at 50, and because

the government attorney-client privilege is not recognized in

the same way as the personal attorney-client privilege ad-

dressed in Swidler & Berlin, we believe this case poses the

question whether, in the first instance, the privilege extends

as far as the Office of the President would like. In other

words, pursuant to our authority and duty under Rule 501 of

the Federal Rules of Evidence to interpret privileges "in light

of reason and experience," Fed. R. Evid. 501, we view our

exercise as one in defining the particular contours of the

government attorney-client privilege.

When an executive branch attorney is called before a

federal grand jury to give evidence about alleged crimes

within the executive branch, reason and experience, duty, and

tradition dictate that the attorney shall provide that evidence.

With respect to investigations of federal criminal offenses,

and especially offenses committed by those in government,

government attorneys stand in a far different position from

members of the private bar. Their duty is not to defend

clients against criminal charges and it is not to protect

wrongdoers from public exposure. The constitutional respon-

sibility of the President, and all members of the Executive

Branch, is to "take Care that the Laws be faithfully execut-

ed." U.S. Const. art. II, s 3. Investigation and prosecution

of federal crimes is one of the most important and essential

functions within that constitutional responsibility. Each of

our Presidents has, in the words of the Constitution, sworn

that he "will faithfully execute the Office of President of the

United States, and will to the best of [his] Ability, preserve,

protect and defend the Constitution of the United States."

Id. art. II, s 1, cl. 8. And for more than two hundred years

each officer of the Executive Branch has been bound by oath

or affirmation to do the same. See id. art. VI, cl. 3; see also

28 U.S.C. s 544 (1994). This is a solemn undertaking, a

binding of the person to the cause of constitutional govern-

ment, an expression of the individual's allegiance to the

principles embodied in that document. Unlike a private

practitioner, the loyalties of a government lawyer therefore

cannot and must not lie solely with his or her client agency.3

The oath's significance is underscored by other evocations

of the ethical duties of government lawyers.4 The Profession-

__________

3 We recognize, as our dissenting colleague emphasizes, that

every lawyer must take an oath to enter the bar of any court. But

even after entering the bar, a government attorney must take

another oath to enter into government service; that in itself shows

the separate meaning of the government attorney's oath. More-

over, the oath is significant to our analysis only to the extent that it

underlies the fundamental differences in the roles of government

and private attorneys--of particular note, the fact that private

attorneys cannot take official actions.

4 Indeed, the responsibilities of government lawyers to the

public have long governed the actions they can take on behalf of

their "client":

The United States Attorney is the representative not of an

ordinary party to a controversy, but of a sovereignty whose

obligation to govern impartially is as compelling as its obli-

al Ethics Committee of the Federal Bar Association has

described the public trust of the federally employed lawyer as

follows:

[T]he government, over-all and in each of its parts, is

responsible to the people in our democracy with its

representative form of government. Each part of the

government has the obligation of carrying out, in the

public interest, its assigned responsibility in a manner

consistent with the Constitution, and the applicable laws

and regulations. In contrast, the private practitioner

represents the client's personal or private interest....

[W]e do not suggest, however, that the public is the

client as the client concept is usually understood. It is to

say that the lawyer's employment requires him to ob-

serve in the performance of his professional responsibili-

ty the public interest sought to be served by the govern-

mental organization of which he is a part.

Federal Bar Association Ethics Committee, The Government

Client and Confidentiality: Opinion 73-1, 32 Fed. B.J. 71, 72

(1973). Indeed, before an attorney in the Justice Department

can step into the shoes of private counsel to represent a

federal employee sued in his or her individual capacity, the

Attorney General must determine whether the representation

would be in the interest of the United States. See 28 C.F.R.

s 50.15(a). The obligation of a government lawyer to uphold

the public trust reposed in him or her strongly militates

against allowing the client agency to invoke a privilege to

prevent the lawyer from providing evidence of the possible

commission of criminal offenses within the government. As

__________

gation to govern at all; and whose interest ... is not that it

shall win a case, but that justice shall be done.

Berger v. United States, 295 U.S. 78, 88 (1935). In keeping with

these interests, prosecutors must disclose to the defendant exculpa-

tory evidence, see Brady v. Maryland, 373 U.S. 83, 87 (1963), and

must try to "seek justice, not merely to convict," Model Code of

Professional Responsibility EC 7-13 (1980). Similarly, the gov-

ernment lawyer in a civil action must "seek justice" and avoid unfair

settlements or results. Id. EC 7-14.

Judge Weinstein put it, "[i]f there is wrongdoing in govern-

ment, it must be exposed.... [The government lawyer's]

duty to the people, the law, and his own conscience requires

disclosure.... " Jack B. Weinstein, Some Ethical and Polit-

ical Problems of a Government Attorney, 18 Maine L. Rev.

155, 160 (1966).

This view of the proper allegiance of the government

lawyer is complemented by the public's interest in uncovering

illegality among its elected and appointed officials. While the

President's constitutionally established role as superintendent

of law enforcement provides one protection against wrongdo-

ing by federal government officials, see United States v.

Valenzuela-Bernal, 458 U.S. 858, 863 (1982), another protec-

tion of the public interest is through having transparent and

accountable government.5 As James Madison observed,

[a] popular Government, without popular information, or

the means of acquiring it, is but a Prologue to a Farce or

a Tragedy; or, perhaps both. Knowledge will forever

govern ignorance: And a people who mean to be their

own Governors, must arm themselves with the power

which knowledge gives.

Letter from James Madison to W.T. Barry (Aug. 4, 1822), in

9 The Writings of James Madison 103 (Gaillard Hunt ed.,

1910). This court has accordingly recognized that "openness

in government has always been thought crucial to ensuring

that the people remain in control of their government." In re

Sealed Case (Espy), 121 F.3d at 749. Privileges work against

these interests because their recognition "creates the risk

that a broad array of materials in many areas of the executive

branch will become 'sequester[ed]' from public view." Id.

(quoting Wolfe v. Department of Health & Human Servs., 815

F.2d 1527, 1533 (D.C. Cir. 1987)). Furthermore, "to allow

any part of the federal government to use its in-house attor-

__________

5 Congress has clearly indicated, as a matter of policy, that

federal employees should not withhold information relating to possi-

ble criminal misconduct by federal employees on any basis. We

discuss at more length Congress's recognition of these concerns

below in our discussion of 28 U.S.C. s 535(b).

neys as a shield against the production of information rele-

vant to a federal criminal investigation would represent a

gross misuse of public assets." In re Grand Jury Subpoena

Duces Tecum, 112 F.3d 910, 921 (8th Cir.), cert. denied, 117 S.

Ct. 2482 (1997).

Examination of the practice of government attorneys fur-

ther supports the conclusion that a government attorney,

even one holding the title Deputy White House Counsel, may

not assert an attorney-client privilege before a federal grand

jury if communications with the client contain information

pertinent to possible criminal violations. The Office of the

President has traditionally adhered to the precepts of 28

U.S.C. s 535(b), which provides that

[a]ny information ... received in a department or agency

of the executive branch of the Government relating to

violations of title 18 involving Government officers and

employees shall be expeditiously reported to the Attor-

ney General.

28 U.S.C. s 535(b) (1994). We need not decide whether

section 535(b) alone requires White House Counsel to testify

before a grand jury.6 The statute does not clearly apply to

the Office of the President. The Office is neither a "depart-

ment," as that term is defined by the statute, see 5 U.S.C.

s 101 (1994); 28 U.S.C. s 451 (1994); Haddon v. Walters, 43

F.3d 1488, 1490 (D.C. Cir. 1995) (per curiam), nor an "agen-

cy," see Kissinger v. Reporters Comm. for Freedom of the

Press, 445 U.S. 136, 156 (1980) (FOIA case); see also Arm-

strong v. Executive Office of the President, 1 F.3d 1274, 1295

__________

6 28 U.S.C. s 535(a) authorizes the Attorney General to "inves-

tigate any violation of title 18 [the federal criminal code] involving

Government officers and employees." The Independent Counsel

fills the shoes of the Attorney General in this regard because

Congress has given the Independent Counsel "with respect to all

matters in [his] prosecutorial jurisdiction ... full power and inde-

pendent authority to exercise all investigative and prosecutorial

functions and powers of ... the Attorney General." 28 U.S.C.

s 594(a); see In re Sealed Case (Secret Service), 1998 WL 370584,

at *7.

(D.C. Cir. 1993) (per curiam); National Sec. Archive v.

Archivist of the United States, 909 F.2d 541, 545 (D.C.Cir.

1990) (per curiam). However, at the very least "[section]

535(b) evinces a strong congressional policy that executive

branch employees must report information" relating to viola-

tions of Title 18, the federal criminal code. In re Sealed Case

(Secret Service), 1998 WL 370584, at *7. As the House

Committee Report accompanying section 535 explains, "[t]he

purpose" of the provision is to "require the reporting by the

departments and agencies of the executive branch to the

Attorney General of information coming to their attention

concerning any alleged irregularities on the part of officers

and employees of the Government." H.R. Rep. No. 83-2622,

at 1 (1954). Section 535(b) suggests that all government

employees, including lawyers, are duty-bound not to withhold

evidence of federal crimes.

Furthermore, government officials holding top legal posi-

tions have concluded, in light of section 535(b), that White

House lawyers cannot keep evidence of crimes committed by

government officials to themselves. In a speech delivered

after the Kissinger FOIA case was handed down, Lloyd

Cutler, who served as White House Counsel in the Carter and

Clinton Administrations, discussed the "rule of making it your

duty, if you're a Government official as we as lawyers are, a

statutory duty to report to the Attorney General any evidence

you run into of a possible violation of a criminal statute."

Lloyd N. Cutler, The Role of the Counsel to the President of

the United States, 35 Record of the Ass'n of the Bar of the

City of New York No. 8, at 470, 472 (1980). Accordingly,

"[w]hen you hear of a charge and you talk to someone in the

White House ... about some allegation of misconduct, almost

the first thing you have to say is, 'I really want to know about

this, but anything you tell me I'll have to report to the

Attorney General.' " Id. Similarly, during the Nixon admin-

istration, Solicitor General Robert H. Bork told an adminis-

tration official who invited him to join the President's legal

defense team: "A government attorney is sworn to uphold

the Constitution. If I come across evidence that is bad for

the President, I'll have to turn it over. I won't be able to sit

on it like a private defense attorney." A Conversation with

Robert Bork, D.C. Bar Rep., Dec. 1997-Jan. 1998, at 9.

The Clinton Administration itself endorsed this view as

recently as a year ago. In the proceedings leading to the

Supreme Court's denial of certiorari with regard to the

Eighth Circuit's decision in In re Grand Jury Subpoena

Duces Tecum, the Office of the President assured the Su-

preme Court that it "embraces the principles embodied in

Section 535(b)" and acknowledged that "the Office of the

President has a duty, recognized in official policy and prac-

tice, to turn over evidence of the crime." Reply Brief for

Office of the President at 7, Office of the President v. Office of

Independent Counsel, 117 S. Ct. 2482 (1997) (No. 96-1783).

The Office of the President further represented that "on

various occasions" it had "referred information to the Attor-

ney General reflecting the possible commission of a criminal

offense--including information otherwise protected by attor-

ney-client privilege." Id. At oral argument, counsel for the

Office of the President reiterated this position. In addition,

the White House report on possible misdeeds relating to the

White House Travel Office stated that "[i]f there is a reason-

able suspicion of a crime ... about which White House

personnel may have knowledge, the initial communication of

this information should be made to the Attorney General, the

Deputy Attorney General, or the Associate Attorney Gener-

al." White House Travel Office Management Review 23

(1993).

We are not aware of any previous deviation from this

understanding of the role of government counsel. We know

that Nixon White House Counsel Fred Buzhardt testified

before the Watergate grand jury without invoking attorney-

client privilege, although not much may be made of this.7 See

Anthony Ripley, Milk Producers' Group Fined $5,000 for

Nixon Gifts, N.Y. Times, May 7, 1974, at 38. On the other

__________

7 President Nixon waived executive privilege and attorney-

client privilege before the grand jury. See Special Prosecution

Force, Watergate Report 88 (1975) [hereinafter Watergate Re-

port].

hand, the Office of the President points out that C. Boyden

Gray, White House Counsel during the Bush Administration,

and his deputy, John Schmitz, refused to be interviewed by

the Independent Counsel investigating the Iran-Contra affair

and only produced documents subject to an agreement that

"any privilege against disclosure ... including the attorney-

client privilege" was not waived. 1 Lawrence E. Walsh,

Final Report of the Independent Counsel for Iran/Contra

Matters 478-79 & n.52 (1993). However, the Independent

Counsel in that investigation had not subpoenaed Gray or

Schmitz to testify before a grand jury, and there is no

indication that the information sought from them constituted

evidence of any criminal offense. Independent Counsel

Walsh apparently sought to question these individuals merely

to complete his final report. See id. In any event, even

outside the grand jury context, the general practice of gov-

ernment counsel has been to cooperate with the investigations

of independent counsels. For example, Peter Wallison, White

House Counsel under President Reagan, produced his diary

for the Iran-Contra investigation and cooperated in other

ways. See id. at 44, 470 n.137, 517, 520. Other government

attorneys both produced documents and agreed to be inter-

viewed for that investigation. See id. at 346-48, 366-68, 536

& nn.116-17, 537.

The Office of the President asserts two principal contribu-

tions to the public good that would come from a government

attorney's withholding evidence from a grand jury on the

basis of an attorney-client privilege. First, it maintains that

the values of candor and frank communications that the

privilege embodies in every context would apply to Lindsey's

communications with the President and others in the White

House. Government officials, the Office of the President

claims, need accurate advice from government attorneys as

much as private individuals do, but they will be inclined to

discuss their legal problems honestly with their attorneys

only if they know that their communications will be confiden-

tial.

We may assume that if the government attorney-client

privilege does not apply in certain contexts this may chill

some communications between government officials and gov-

ernment lawyers. Even so, government officials will still

enjoy the benefit of fully confidential communications with

their attorneys unless the communications reveal information

relating to possible criminal wrongdoing. And although the

privacy of these communications may not be absolute before

the grand jury, the Supreme Court has not been troubled by

the potential chill on executive communications due to the

qualified nature of executive privilege.8 Compare Nixon, 418

U.S. at 712-13 (discounting the chilling effects of the qualifi-

cation of the presidential communications privilege on the

candor of conversations), with Swidler & Berlin, 1998 WL

333019, at *6 (stating, in the personal attorney-client privilege

context, that an uncertain privilege is often no better than no

privilege at all). Because both the Deputy White House

Counsel and the Independent Counsel occupy positions within

the federal government, their situation is somewhat compara-

ble to that of corporate officers who seek to keep their

communications with company attorneys confidential from

each other and from the shareholders. Under the widely

followed doctrine announced in Garner v. Wolfinbarger, 430

F.2d 1093 (5th Cir. 1970), corporate officers are not always

entitled to assert such privileges against interests within the

corporation, and accordingly must consult with company at-

torneys aware that their communications may not be kept

confidential from shareholders in litigation. See id. at 1101.

Any chill on candid communications with government counsel

flowing from our decision not to extend an absolute attorney-

client privilege to the grand jury context is both comparable

and similarly acceptable.

Moreover, nothing prevents government officials who seek

completely confidential communications with attorneys from

consulting personal counsel. The President has retained

several private lawyers, and he is entitled to engage in the

completely confidential communications with those lawyers

__________

8 We do not address privilege exceptions relating to military

secrets or other exempted communications.

befitting an attorney and a client in a private relationship.

[[ ]]

The Office of the President contends that White House

Counsel's role in preparing for any future impeachment pro-

ceedings alters the policy analysis.9 The Ethics in Govern-

ment Act requires the Independent Counsel to "advise the

House of Representatives of any substantial and credible

information ... that may constitute grounds for an impeach-

ment." 28 U.S.C. s 595(c) (1994). In November 1997, a

Congressman introduced a resolution in the House of Repre-

sentatives calling for an inquiry into possible grounds for

impeachment of the President. See H.R. Res. 304, 105th

Cong. (1997). Thus, to the extent that impeachment proceed-

ings may be on the horizon, the Office of the President

contends that White House Counsel must be given maximum

protection against grand jury inquiries regarding their efforts

to protect the Office of the President, and the President in his

personal capacity, against impeachment. Additionally, the

Office of the President notes that the Independent Counsel

serves as a conduit to Congress for information concerning

grounds for impeachment obtained by the grand jury, and,

consequently, an exception to the attorney-client privilege

before the grand jury will effectively abrogate any absolute

privilege those communications might otherwise enjoy in fu-

ture congressional investigations and impeachment hearings.

Although the Independent Counsel and the Office of the

President agree that White House Counsel can represent the

President in the impeachment process, the precise contours of

Counsel's role are far from settled.10 In any event, no matter

__________

9 The district court did not rule upon this argument, and hence

we lack the benefit of that court's thinking in addition to a complete

record on the nature, scope, and content of communications be-

tween the President and Deputy White House Counsel with regard

to the impeachment issue. See Gilda Marx, Inc. v. Wildwood

Exercise, Inc., 85 F.3d 675, 679 (D.C. Cir. 1996) (per curiam).

10 While a prior Comptroller General has thought that White

House Counsel could properly be paid out of federal funds for

representing the President in matters leading up to an impeach-

what the role should be, impeachment is fundamentally a

political exercise. See The Federalist No. 65 (Alexander

Hamilton); Joseph Story, Commentaries on the Constitution

s 764, at 559 (5th ed. 1905). Impeachment proceedings in the

House of Representatives cannot be analogized to traditional

legal processes and even the procedures used by the Senate

in "trying" an impeachment may not be like those in a judicial

trial. See (Walter) Nixon v. United States, 506 U.S. 224,

228-31 (1993); Story, Commentaries on the Constitution

s 765, at 559-60. How the policy and practice supporting the

common law attorney-client privilege would apply in such a

political context thus is uncertain. In preparing for the

eventuality of impeachment proceedings, a White House

Counsel in effect serves the President as a political advisor,

albeit one with legal expertise: to wit, Lindsey occupies a

dual position as an Assistant to the President and a Deputy

White House Counsel. Thus, information gathered in prepa-

ration for impeachment proceedings and conversations re-

garding strategy are presumably covered by executive, not

attorney-client, privilege. While the need for secrecy might

arguably be greater under these circumstances, the district

court's ruling on executive privilege is not before us. In

__________

ment, see Letter from Elmer B. Staats, U.S. Comptroller General,

to Rep. John F. Seiberling 7 (Oct. 25, 1974), history yields little

guidance on the role that White House Counsel would properly play

in impeachment proceedings. The only President impeached by the

House and tried by the Senate, Andrew Johnson, retained private

counsel, and his Attorney General resigned from office in order to

assist in his defense. See William H. Rehnquist, Grand Inquests

222 (1992). In contrast, after the House Judiciary Committee

began an impeachment inquiry into the Watergate scandal, Presi-

dent Richard Nixon appointed James D. St. Clair as a special

counsel to the President for Watergate-related matters. See Wa-

tergate Report 103. Although Nixon resigned before the House of

Representatives voted on any articles of impeachment, St. Clair

handled much of the President's defense until the President's

resignation. See id. at 103-15. At the very least, nothing prevents

a President faced with impeachment from retaining private counsel,

and in turn this makes less clear what might be the division of labor

between White House Counsel and private counsel.

addition, in responding to the grand jury investigation and

gathering information in preparation for future developments

in accordance with his official duties, White House Counsel

may need to interact with the President's private attorneys,

and to that extent other privileges may be implicated.

[[ ]]

Nor is our conclusion altered by the Office of the Presi-

dent's concern over the possibility that Independent Counsel

will convey otherwise privileged grand jury testimony of

White House Counsel to Congress.11 Cf. Fed. R. Crim. P. 6(e).

First, no one can say with certainty the extent to which a

privilege would generally protect a White House Counsel

from testifying at a congressional hearing. The issue is not

presently before the court.12 See Nixon, 418 U.S. at 712 n.19;

In re Sealed Case (Espy), 121 F.3d at 739 nn.9-10, 753.

Second, the particular procedures and evidentiary rules to be

employed by the House and Senate in any future impeach-

ment proceedings remain entirely speculative. Finally,

whether Congress can abrogate otherwise recognized privi-

leges in the course of impeachment proceedings may well

constitute a nonjusticiable political question. See (Walter)

Nixon, 506 U.S. at 236.

The Supreme Court's recognition in United States v. Nixon

of a qualified privilege for executive communications severely

undercuts the argument of the Office of the President regard-

__________

11 Contrary to the Office of the President's suggestion, this is

not a novel concern stemming from the Ethics in Government Act.

During initial discussions with the Watergate Special Prosecutor,

"[James] St. Clair was primarily concerned that evidence produced

for the grand jury not subsequently be provided by [the Special

Prosecutor] to the House Judiciary Committee for use in its im-

peachment inquiry." Watergate Report 104-05. The Special

Prosecutor eventually asked the grand jury to transmit an "eviden-

tiary report" to the House Committee considering President Nix-

on's impeachment. Id. at 143.

12 The Office of the President cites no authority for the proposi-

tion that communications between White House Counsel and the

President would be absolutely privileged in congressional proceed-

ings, but rather merely suggests that they "should" be.

ing the scope of the government attorney-client privilege. A

President often has private conversations with his Vice Presi-

dent or his Cabinet Secretaries or other members of the

Administration who are not lawyers or who are lawyers, but

are not providing legal services. The advice these officials

give the President is of vital importance to the security and

prosperity of the nation, and to the President's discharge of

his constitutional duties. Yet upon a proper showing, such

conversations must be revealed in federal criminal proceed-

ings. See Nixon, 418 U.S. at 713; In re Sealed Case (Espy),

121 F.3d at 745. Only a certain conceit among those admit-

ted to the bar could explain why legal advice should be on a

higher plane than advice about policy, or politics, or why a

President's conversation with the most junior lawyer in the

White House Counsel's Office is deserving of more protection

from disclosure in a grand jury investigation than a Presi-

dent's discussions with his Vice President or a Cabinet Secre-

tary. In short, we do not believe that lawyers are more

important to the operations of government than all other

officials, or that the advice lawyers render is more crucial to

the functioning of the Presidency than the advice coming

from all other quarters.

The district court held that a government attorney-client

privilege existed and was applicable to grand jury proceed-

ings, but could be overcome, as could an applicable executive

privilege, upon a showing of need and unavailability else-

where by the Independent Counsel. While we conclude that

an attorney-client privilege may not be asserted by Lindsey

to avoid responding to the grand jury if he possesses informa-

tion relating to possible criminal violations, he continues to be

covered by the executive privilege to the same extent as the

President's other advisers. Our analysis, in addition to hav-

ing the advantages mentioned above, avoids the application of

balancing tests to the attorney-client privilege--a practice

recently criticized by the Supreme Court. See Swidler &

Berlin, 1998 WL 333019, at *6.

In sum, it would be contrary to tradition, common under-

standing, and our governmental system for the attorney-

client privilege to attach to White House Counsel in the same

manner as private counsel. When government attorneys

learn, through communications with their clients, of informa-

tion related to criminal misconduct, they may not rely on the

government attorney-client privilege to shield such informa-

tion from disclosure to a grand jury.

III. [[

]].

IV.

Accordingly, for the reasons stated in this opinion, we

affirm [[ ]].

In accordance with the Supreme Court's expectation that

"the Court of Appeals will proceed expeditiously to decide

this case," Clinton, 118 S. Ct. at 2079, any petition for

rehearing or suggestion for rehearing in banc shall be filed

within seven days after the date of this decision.

It is so ordered.

Tatel, Circuit Judge, dissenting from Part II and concur-

ring in part and dissenting in part from Part III. The

attorney-client privilege protects confidential communication

between clients and their lawyers, whether those lawyers

work for the private sector or for government. Although I

have no doubt that government lawyers working in executive

departments and agencies enjoy a reduced privilege in the

face of grand jury subpoenas, I remain unconvinced that

either "reason" or "experience" (the tools of Rule 501) justi-

fies this court's abrogation of the attorney-client privilege for

lawyers serving the Presidency. This court's far-reaching

ruling, moreover, may have been unnecessary to give this

grand jury access to Bruce Lindsey's communications with

the President, for on this record it is not clear whether those

communications involved official legal advice that would be

protected by the attorney-client privilege. Before limiting

the attorney-client privilege not just for this President, but

for all Presidents to come, the court should have first re-

manded this case to the district court to recall Lindsey to the

grand jury to determine the precise nature of his communica-

tions with the President.

I

My colleagues and I have no disagreement concerning

personal legal advice Lindsey may have given the President.

We agree, and the White House concedes, that the official

attorney-client privilege does not protect such communica-

tions, for as a White House employee Lindsey had no authori-

ty to provide such advice. Nor do we disagree about political

advice given to the President by advisers who happen to be

lawyers. Such advice is protected, if at all, by the executive

privilege alone. Our disagreement centers solely on whether

a grand jury can pierce the attorney-client privilege with

respect to official legal advice that the Office of White House

Counsel gives a sitting President.

One of the oldest privileges at common law and " 'rooted in

the imperative need for confidence and trust,' " Jaffee v.

Redmond, 518 U.S. 1, 10 (1996) (quoting Trammel v. United

States, 445 U.S. 40, 51 (1980)), the attorney-client privilege

"encourage[s] 'full and frank communication between attor-

neys and their clients, and thereby promote[s] broader public

interests in the observance of law and the administration of

justice.' " Swidler & Berlin v. United States, No. 97-1192,

1998 WL 333019, at *3 (U.S. June 25, 1998) (quoting Upjohn

Co. v. United States, 449 U.S. 383, 389 (1981)). The privilege

protects client confidences even in the face of grand jury

subpoenas. See id. at *2, *7.

Government attorneys enjoy the attorney-client privilege in

order to provide reliable legal advice to their governmental

clients. "Unless applicable law otherwise provides, the attor-

ney-client privilege extends to a communication of a govern-

mental organization ... and of an individual officer ... of a

governmental organization." Restatement (Third) of the

Law Governing Lawyers ("Restatement") s 124 (Proposed

Final Draft No. 1, 1996); see also Proposed Fed. R. Evid.

503(a)(1), reprinted in 56 F.R.D. 183, 235 (1972). We have

explained that where "the Government is dealing with its

attorneys as would any private party seeking advice to pro-

tect personal interests, [it] needs the same assurance of

confidentiality so it will not be deterred from full and frank

communications with its counselors." Coastal States Gas

Corp. v. Department of Energy, 617 F.2d 854, 863 (D.C. Cir.

1980); see also Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C.

Cir. 1997) ("Communications revealing ... client confidences

[between IRS field personnel and IRS counsel regarding

audit activity] ... are clearly covered by the attorney-client

privilege....").

This court now holds that for all government attorneys,

including those advising a President, the attorney-client privi-

lege dissolves in the face of a grand jury subpoena. Accord-

ing to the court, its new rule "avoids the application of

balancing tests to the attorney-client privilege--a practice

recently criticized by the Supreme Court." Maj. Op. at 26.

But whether a court abrogates the privilege by applying the

balancing test rejected in Swidler, or by the rule the court

adopts today, the chilling effect is precisely the same.

Clients, in this case Presidents of the United States, will

avoid confiding in their lawyers because they can never know

whether the information they share, no matter how innocent,

might some day become "pertinent to possible criminal viola-

tions," id. at 18. Rarely will White House counsel possess

cold, hard facts about presidential wrongdoing that would

create a strong public interest in disclosure, yet the very

possibility that the confidence will be breached will chill

communications. See Swidler, 1998 WL 333019, at *5-6. As

a result, Presidents may well shift their trust on all but the

most routine legal matters from White House counsel, who

undertake to serve the Presidency, to private counsel who

represent its occupant.

Unlike Jaffee, 518 U.S. at 10-11 (recognizing a federal

psychotherapy privilege), and In re Sealed Case, No. 98-3069,

1998 WL 370584, at *4 (D.C. Cir. July 7, 1998) (declining to

recognize a protective function privilege for Secret Service

agents), this case involves not the creation of a new privilege,

but as in Swidler, the carving out of an exception to an

already well-established privilege. See Swidler, 1998 WL

333019, at *6. Denying that they are creating an exception,

my colleagues say that they are "defining the particular

contours of the government attorney-client privilege," Maj.

Op. at 14, but no court has suggested that the attorney-client

privilege must be extended client by client to each new

governmental entity, proceeding by proceeding. Rather,

"[u]nless applicable law otherwise provides," Restatement

s 124, the privilege applies to all attorneys and all clients,

regardless of their identities or the nature of the proceeding,

see Swidler, 1998 WL 333019, at *6 (finding no case authority

for civil-criminal distinction). The question before us, then, is

whether either "reason" or "experience" (Fed. R. Evid. 501),

calls for exempting the Presidency from the traditional

attorney-client relationship that all clients enjoy with their

lawyers. See, e.g., Trammel, 445 U.S. at 48, 52 (curtailing

spousal privilege based on majority trend in state law, the

disappearance of "ancient" notions of the subordinate status

of women, and the unpersuasiveness of arguments regarding

privilege's effect on marital stability).

As one of its reasons for abrogating the presidential

attorney-client privilege, the court says that legal advice is no

different from the advice a President receives from other

advisers, advice protected only by executive privilege. Maj.

Op. at 25-26. I think the court seriously underestimates the

independent role and value of the attorney-client privilege.

Unlike the executive privilege--a broad, constitutionally de-

rived privilege that protects frank debate between President

and advisers, see United States v. Nixon, 418 U.S. 683, 708

(1974); In re Sealed Case, 121 F.3d 729, 742-46 (D.C. Cir.

1997)--the narrower attorney-client privilege flows not from

the Constitution, but from the common law, see Swidler, 1998

WL 333019, at *7. The attorney-client privilege does not

protect general policy or political advice--even when given by

lawyers--but only communications with lawyers "for the pur-

pose of obtaining legal assistance." Restatement s 122. Ne-

cessitated by the nature of the lawyer's function, the

attorney-client privilege enables the lawyer as an officer of

the court properly to advise the client, including facilitating

compliance with the law. See Upjohn, 449 U.S. at 389. In

other words, the unique protection the law affords a Presi-

dent's communications with White House counsel rests not, as

my colleagues put it, on some "conceit" that "lawyers are

more important to the operations of government than all

other officials," Maj. Op. at 26, but rather on the special

nature of legal advice, and its special need for confidentiality,

as recognized by centuries of common law. It therefore

makes sense that the Presidency possesses both the attorney-

client and executive privileges, and that courts treat them

differently.

The court also cites 28 U.S.C. s 535(b). Although that

statute generally supports qualifying--though not abrogat-

ing--the attorney-client privilege for government attorneys

working in executive departments and agencies, the court

acknowledges, as the Attorney General has told us in her

amicus brief, that section 535(b) does not apply to the Office

of the President. The court cites several statements, includ-

ing former White House Counsel Lloyd Cutler's speech to the

New York Bar, the White House Travel Office Management

Review, and the Administration's certiorari petition in In re

Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir.),

cert. denied, 117 S. Ct. 2482 (1997), indicating that White

House lawyers comply with the spirit of section 535(b). Maj.

Op. at 19-20. Nothing in those statements suggests, howev-

er, that their authors were referring to conversations between

White House counsel and the President of the United States,

i.e., that one presidential subordinate (White House counsel)

would report a confidential conversation with a President to

another presidential subordinate (the Attorney General).

The court points to no other statutory basis for denying the

President the benefit of the official privilege. Although the

Independent Counsel statute ensures independent, aggressive

prosecution of wrongdoing, nothing in that statute disables a

President from defending himself or otherwise indicates that

Congress intended to deprive the Presidency of its official

privileges.

The court refers to actions of a few previous White House

counsel: Fred Buzhardt testified voluntarily before the Wa-

tergate grand jury; Peter Wallison turned over his diaries to

the Iran-Contra investigation; and C. Boyden Gray and his

deputy refused to be interviewed by that same Iran-Contra

Independent Counsel. See Maj. Op. at 20-21. In my view,

these limited and contradictory examples reveal nothing

about the standard we should apply where, as here, a Presi-

dent of the United States actually invokes the attorney-client

privilege in the face of a grand jury subpoena.

Acknowledging the facial inapplicability of section 535(b) to

the Office of the President, the court relies on the govern-

ment lawyer's oath of office for the proposition that White

House counsel cannot have a traditional attorney-client rela-

tionship with the President. But all lawyers, whether they

work within the government or the private sector, take an

oath to uphold the Constitution of the United States. In

order to practice before this court, for example, attorneys

must promise to "demean [themselves] ... according to law

... [and] support the Constitution of the United States."

Application for Admission to Practice (U.S. Court of Appeals

for the D.C. Circuit). No one would suggest that this oath

abrogates a client's privilege in the face of a grand jury

subpoena.

This court's opinion, moreover, nowhere accounts for the

unique nature of the Presidency, its unique need for confiden-

tial legal advice, or the possible consequences of abrogating

the attorney-client privilege for a President's ability to obtain

such advice. Elected, head of the Executive Branch,

Commander-in-Chief, head of State, and removable only by

impeachment, the President is not just "a part of the federal

government, consisting of government employees doing gov-

ernment business." Maj. Op. at 2. As Justice Robert H.

Jackson observed in the steel seizure case, the Presidency

concentrates executive authority "in a single head in whose

choice the whole Nation has a part, making him the focus of

public hopes and expectations. In drama, magnitude and

finality his decisions so far overshadow any others that almost

alone he fills the public eye and ear." Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579, 653 (1952) (Jackson, J.,

concurring). Echoing Justice Jackson three decades later,

the Supreme Court emphasized in Nixon v. Fitzgerald, 457

U.S. 731 (1982), that the President "occupies a unique position

in the constitutional scheme," id. at 749, that we depend on

the President for the "most sensitive and far-reaching deci-

sions entrusted to any official under our constitutional sys-

tem," id. at 752, and that the President's "unique status

under the Constitution" distinguishes him from other execu-

tive branch officials, id. at 750. The Attorney General,

focusing on the President's "singular responsibilities," de-

scribes the Presidency's critical need for legal advice as

follows:

The Constitution vests the President with unique, and

uniquely consequential, powers and responsibilities. The

Nation's "executive Power" is vested in him alone. U.S.

Const. Art. II, s 1. In addition to his significant and

diverse domestic and foreign affairs responsibilities, he is

specifically required to adhere to and follow the law, both

in his oath of office (Art. II, s 1, Cl. 8) and in the

requirement that "he shall take Care that the Laws be

faithfully executed." Art. II, s 3. To fulfill his manifold

duties and functions, the President must have access to

legal advice that is frank, fully informed, and confiden-

tial. Because of the magnitude of the Nation's interest

in facilitating the President's conduct of his office in

accordance with law, the President's pressing need for

effective legal advice knows no parallel in government.

Amicus Br. at 24. By lumping the President together with

tax collectors, passport application processors, and all other

executive branch employees--even cabinet officers--the court

bypasses the reasoned "case-by-case" analysis demanded by

Rule 501, Jaffee, 518 U.S. at 8 (quoting S. Rep. No. 93-1277,

at 13 (1974)).

A President's need for confidential legal advice may

"know[ ] no parallel in government" for another reason. Be-

cause the Presidency is tied so tightly to the persona of its

occupant, and because of what Fitzgerald referred to as the

Presidency's increased "vulnerability," stemming from "the

visibility of [the] office and the effect of [the President's]

actions on countless people," Fitzgerald, 457 U.S. at 753,

official matters--proper subjects for White House counsel

consultation--often have personal implications for a Presi-

dent. Since for any President the line between official and

personal can be both elusive and difficult to discern, I think

Presidents need their official attorney-client privilege to per-

mit frank discussion not only of innocuous, routine issues, but

also sensitive, embarrassing, or even potentially criminal top-

ics.

The need for the official presidential attorney-client privi-

lege seems particularly strong after Watergate which, while

ushering in a new era of accountability and openness in the

highest echelons of government, also increased the Presiden-

cy's vulnerability. Aggressive press and congressional scruti-

ny, the personalization of politics, and the enactment of the

Independent Counsel statute, Pub. L. No. 95-521, Tit. VI, 92

Stat. 1824, 1867 (1978) (codified as amended at 28 U.S.C.

ss 591-599 (1994))--which triggers appointment of an Inde-

pendent Counsel based on no more than the existence of

"reasonable grounds to believe that further investigation is

warranted," 28 U.S.C. s 592(c)(1)(A)--have combined to

make the Supreme Court's fear that Presidents have become

easy "target[s]," Fitzgerald, 457 U.S. at 753, truer than ever.

No President can navigate the treacherous waters of post-

Watergate government, make controversial official legal deci-

sions, decide whether to invoke official privileges, or even

know when he might need private counsel, without confiden-

tial legal advice. Because of the Presidency's enormous

responsibilities, moreover, the nation has compelling reasons

to ensure that Presidents are well defended against false or

frivolous accusations that could interfere with their duties.

The nation has equally compelling reasons for ensuring that

Presidents are well advised on whether charges are serious

enough to warrant private counsel. I doubt that White

House counsel can perform any of these functions without the

candor made possible by the attorney-client privilege. As I

said at the outset, weakening the privilege may well cause

Presidents to shift their trust from White House lawyers who

have undertaken to serve the Presidency, to private lawyers

who have not.

Preserving the official presidential attorney-client privilege

would not place the President above the law, as the Indepen-

dent Counsel implies. To begin with, by enabling clients--

including Presidents--to be candid with their lawyers and

lawyers to advise clients confidentially, the attorney-client

privilege promotes compliance with the law. See Upjohn, 449

U.S. at 389. Independent Counsels, moreover, have powerful

weapons to combat abuses of the attorney-client privilege. If

evidence suggested that a President used White House coun-

sel to further a crime, the crime-fraud exception would abro-

gate the privilege. See United States v. Zolin, 491 U.S. 554,

562-63 (1989). If an Independent Counsel had evidence that

White House counsel's status as an attorney was used to

protect non-legal materials from disclosure, those materials

would not be protected. See State v. Philip Morris Inc., No.

C1-94-8565, 1998 WL 257214, at *7 (Minn. Dist. Ct. Mar. 7,

1998) (releasing documents as penalty for bad faith claim of

privilege). "The privilege takes flight," Justice Benjamin

Cardozo said, "if the [attorney-client] relation is abused."

Clark v. United States, 289 U.S. 1, 15 (1933). Or if an

Independent Counsel presented evidence that a White House

counsel committed a crime, a grand jury could indict that

lawyer. See George Lardner, Jr., Dean Guilty in Cover-Up:

Nixon Ex-Aide Pleads to Count of Conspiracy, Wash. Post,

Oct. 20, 1973, at A1. This Independent Counsel has never

alleged that any of these abuses occurred.

To be sure, a properly exercised attorney-client privilege

may deny a grand jury access to information, see Swidler,

1998 WL 333019, at *6 (justifying the burden placed on the

truth-seeking function by the privilege), but Presidents re-

main accountable in other ways, see Fitzgerald, 457 U.S. at

757 (checks on Presidential action include impeachment, press

scrutiny, congressional oversight, need to maintain prestige,

and concern for historical stature). An Independent Counsel,

moreover, can always report to Congress that a President has

denied critical information to a grand jury. See 28 U.S.C.

s 595(a)(2), (c). If the President continues to exercise his

attorney-client privilege in the face of a congressional subpoe-

na, and if Congress believes that the President has committed

"high Crimes and Misdemeanors," U.S. Const. art. II, s 4,

Congress can always consider impeachment. See H. Rep. No.

93-1305, at 4, 187-213 (1974) (recommending impeachment of

President Nixon based on his refusal to turn over information

in response to congressional subpoenas).

II

During Lindsey's several grand jury appearances he in-

voked both executive and attorney-client privileges, often with

respect to the same questions. Now that the White House

has dropped the executive privilege issue, much of that

information may be available to the Independent Counsel and

we have no way of knowing which questions, if any, Lindsey

would continue to decline to answer. Even more fundamen-

tal, Lindsey's affidavit, [[ ]] and the affidavit of White

House Counsel Charles F.C. Ruff suggest that the communi-

cations between Lindsey and the President regarding the

Monica Lewinsky and Paula Jones matters may have involved

political and policy discussions, not legal advice. To be sure,

the affidavits [[ ]] refer to advice about legal

topics, such as invoking privileges and preparing for impeach-

ment. But nowhere do they demonstrate that Lindsey ren-

dered that advice in his capacity as a lawyer, i.e., that "the

lawyer's professional skill and training would have value in

the matter." Restatement s 122 cmt. b. A conversation is

not privileged merely because the President asked Lindsey a

question about a nominally legal matter or in his capacity as

White House Counsel staff. For example, if Lindsey advised

the President about the political implications of invoking

executive privilege, that communication would not be privi-

leged; if he discussed the availability of the privilege as a

legal matter, the conversation would be protected.

Distinguishing between Lindsey's legal and non-legal ad-

vice becomes even more difficult because not only does Lind-

sey wear two hats, one legal (Deputy White House Counsel)

and one non-legal (Special Assistant to the President), but the

Office of White House Counsel has historically performed

many non-legal functions, such as giving policy advice, writing

speeches, and performing various political tasks. See Ste-

phen Hess, Organizing the Presidency 36, 43, 84 (1988); Lloyd

N. Cutler, The Role of the Counsel to the President of the

United States, 35 Record of the Association of the Bar of the

City of New York 470, 472-76 (1980); Jeremy Rabkin, At the

President's Side: The Role of the White House Counsel in

Constitutional Policy, Law & Contemp. Probs., Autumn 1993,

at 63, 65-76. When an advisor serves dual roles, the party

invoking the privilege bears a particularly heavy burden of

demonstrating that the services provided were in fact legal.

See, e.g., Texaco Puerto Rico, Inc. v. Department of Consum-

er Affairs, 60 F.3d 867, 884 (1st Cir. 1995) (where agency

"delegated policymaking authority to its outside counsel to

such an extent that counsel ceased to function as lawyers and

began to function as regulators," it could not invoke attorney-

client privilege); Restatement s 122 cmt. c (whether privi-

lege applies to lawyer acting in dual roles depends upon

circumstances); cf. In re Sealed Case, 121 F.3d at 752 (with

respect to " 'dual hat' presidential advisors, the government

bears the burden of proving that the communications" are

covered by the executive privilege).

Accordingly, before abrogating the official attorney-client

privilege for all future Presidents, this court should have

remanded to the district court to allow the Independent

Counsel to recall Lindsey to the grand jury to determine

whether, with respect to each question that he declines to

answer, he can demonstrate the elements of the attorney-

client privilege, namely that each communication was made

between privileged persons in confidence "for the purpose of

obtaining or providing legal assistance for the client," Re-

statement s 118. See United States v. Kovel, 296 F.2d 918,

923 (2nd Cir. 1961) (remanding to permit accountant witness

to offer factual support for assertion that communications

were made in pursuit of legal advice). If Lindsey failed to

meet this burden, that would end the matter, leaving for

another day the difficult question of presidential attorney-

client privilege, with its consequences for the functioning of

the Presidency, as well as its potential implications for possi-

ble impeachment proceedings (implications we have hardly

begun to consider). See Maj. Op. at 23-25; Office of the

President Br. at 26-29; Office of the Independent Counsel

Br. at 35; cf. Amicus Br. at 34-37. On the other hand, if

Lindsey demonstrated that his communications involved offi-

cial legal advice, the district court could use the remand to

enrich the record by, for example, inviting former White

House counsel to describe the nature of the relationship

between Presidents and White House counsel generally and

the role of the attorney-client privilege in particular. This

would create an infinitely more useful record for us, or

eventually the Supreme Court, to determine whether reason

or experience justifies any change in the official presidential

attorney-client privilege, and if so, whether the privilege can

be modified without threatening a President's ability to "take

Care that the Laws be faithfully executed." U.S. Const. art.

II, s 3. See Swidler, 1998 WL 333019, at *6 n.4 (noting lack

of empirical evidence in support of limiting the privilege);

Jaffee, 518 U.S. at 16 & n.16 (relying on amicus briefs citing

psychology and social work studies); Trammel, 445 U.S. at

48, 52 (relying on historical developments regarding the role

of women in marriage).

I do not consider the Supreme Court's expectation that we

proceed expeditiously to be inconsistent with our obligation to

engage in fully reasoned and informed decision-making. The

importance to the Presidency of effective legal advice re-

quires no less. Moreover, according to the Independent

Counsel, the grand jury is exploring whether obstruction of

justice, perjury, witness intimidation, and other crimes were

committed in January 1998. See 18 U.S.C. s 3282 (establish-

ing five-year statute of limitations for non-capital federal

crimes). We thus have time to determine whether we need to

resolve this important question and, if so, to ensure that we

do so on the basis of a fuller, more useful record. If the

Independent Counsel needs to report to Congress more expe-

ditiously, he is free to do so.

III [[

]]