In Re: Bruce Lindsey

TATEL, Circuit Judge,

dissenting from Part II and concurring 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) justifies 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 remanded this case to the district court to redall Lindsey to the grand jury to determine the precise nature of his communications 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 communications, for as a White House employee Lindsey had no authority to provide such advice. Nor do we disagree about political advice given to the President by ádvisers 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 , 116 S.Ct. 1923 , 135 L.Ed.2d 337 *1119 (1996) (quoting Trammel v. United States, 445 U.S. 40, 51 , 100 S.Ct. 906 , 63 L.Ed.2d 186 (1980)), the attorney-client privilege “encourage[s] ‘full and frank communication between attorneys and them clients, and thereby pro-motets] broader public interests in the observance of law and the administration of justice.’ ” Swidler & Berlin v. United States, 118 S.Ct. 2081, 2084-85 (1998) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677 , 66 L.Ed.2d 584 (1981)). The privilege protects client confidences even in the face of grand jury subpoenas. See id. at 2083-84, 2087-88.

Government attorneys enjoy the attorney-client privilege in order to provide reliable legal advice to their governmental clients. “Unless applicable law otherwise provides, the attorney-client privilege extends to a communication of a governmental organization ... and of an individual officer ... of a governmental organization.” Restatement (Third) of the Law Governing Lawyers (“Restatement”) § 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 protect 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 privilege dissolves in the face of a grand jury subpoena. According 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 1114. 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 ease 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 violations,” id. at 1110. 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, — U.S. -, ---, 118 S.Ct. 2081, 2086-87 , 141 L.Ed.2d 379 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 , 116 S.Ct. 1923 (recognizing a federal psychotherapy privilege), and In re Sealed Case, 148 F.3d at 1076 (D.C.Cir.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 Sividler, the carving out of an exception to an already well-established privilege. See Swidler, — U.S. -, -, 118 S.Ct. 2081, 2086-87 , 141 L.Ed.2d 379 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 1108, 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 § 124, the privilege applies to all attorneys and all clients, regardless of their identities or the nature of the proceeding, see Swidler, — U.S. -, -, 118 S.Ct. 2081, 2086-87 , 141 L.Ed.2d 379 (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 , 100 S.Ct. 906 (curtailing spousal *1120 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 1113-1114. I think the court seriously underestimates the independent role and value of the attorney-client privilege. Unlike the executive privilege — a broad, constitutionally derived privilege that protects frank debate between President and advisers, see United States v. Nixon, 418 U.S. 683, 708 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (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, — U.S. -, -, 118 S.Ct. 2081 , 2087-88 141 L.Ed.2d 379 . The attorney-client privilege does not protect general policy or political advice — even when given by lawyers — but only communications with lawyers “for the purpose of obtaining legal assistance.” Restatement § 122. Necessitated 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 , 101 S.Ct. 677 . In other words, the unique protection the law affords a President’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 1114, 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. § 535 (b). Although that statute generally supports qualifying — though not abrogating — 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, including 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, — U.S. -, 117 S.Ct. 2482 , 138 L.Ed.2d 991 (1997), indicating that White House lawyers comply with the spirit of section 535(b). Maj. Op. at 1110-11. Nothing in those statements suggests, however, 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 Watergate 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 1111— 1112. In my view, these limited and contradictory examples reveal nothing about the standard we should apply where, as here, a President 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 government lawyer’s oath of office for the proposition that White House counsel cannot have a traditional attorney-client relationship with the President. *1121 But all lawyers, whether they work within the government or the pi'ivate 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 confidential 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 government business.” Maj. Op. at 1102. 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 , 72 S.Ct. 863 , 96 L.Ed. 1153 (1952) (Jackson, J., concurring). Echoing Justice Jackson three decades later, the Supreme Court emphasized in Nixon v. Fitzgerald, 457 U.S. 731 , 102 S.Ct. 2690 , 73 L.Ed.2d 349 (1982), that the President “occupies a unique position in the constitutional scheme,” id. at 749 , 102 S.Ct. 2690 , that we depend on the President for the “most sensitive and far-reaching decisions entrusted to any official under our constitutional system,” id. at 752 , 102 S.Ct. 2690 , and that the President’s “unique status under the Constitution” distinguishes him from other executive branch officials, id. at 750 , 102 S.Ct. 2690 . The Attorney General, fusing on the President’s “singular responsibilities,” describes 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, § 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, § 1, Cl. 8) and in the requirement that “he shall take Care that the Laws be faithfully executed.” Art. II, § 3. To fulfill his manifold duties and functions, the President must have access to legal advice that is frank, fully informed, and confidential. 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 “ ‘ease-by-case’ ” analysis demanded by Rule 501. Jaffee, 518 U.S. at 8 , 116 S.Ct. 1923 (quoting S. Rep. No. 93-1277, at 13 (1974), U.S.Code Cong. & Admin.News 1974 pp. 7051, 7059).

A President’s need for confidential legal advice may “know[] no parallel in government” for another reason. Because 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 , 102 S.Ct. 2690 , official matters — proper subjects for White House counsel consultation — often have personal implications for a President. 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 permit frank discussion not only of innocuous, routine issues, but also sensitive, embarrassing, or even potentially criminal topics.

The need for the official presidential attorney-client privilege seems particularly strong *1122 after Watergate which, while ushering in a new era of accountability and openness in the highest echelons of government, also increased the Presidency’s vulnerability. Aggressive press and congressional scrutiny, 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. §§ 591-599 (1994)) — which triggers appointment of an Independent Counsel based on no more than the existence of “reasonable grounds to believe that further investigation is warranted,” 28 U.S.C. § 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 , 102 S.Ct. 2690 , truer than ever. No President can navigate the treacherous waters of post-Watergate government, make controversial official legal decisions, decide whether to invoke official privileges, or even know when he might need private counsel, without confidential 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 Independent 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 , 101 S.Ct. 677 . Independent Counsels, moreover, have powerful weapons to combat abuses of the attorney-client privilege. If evidence suggested that a President used White House counsel to further a crime, the crime-fraud exception would abrogate the privilege. See United States v. Zolin, 491 U.S. 554, 562-63 , 109 S.Ct. 2619 , 105 L.Ed.2d 469 (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 wrote, “if the [attorney-client] relation is abused.” Clark v. United States, 289 U.S. 1, 15 , 53 S.Ct. 465 , 77 L.Ed. 993 (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 Al. 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, — U.S. -, -, 118 S.Ct. 2081, 2086-87 , 141 L.Ed.2d 379 (justifying the burden placed on the truth-seeking function by the privilege), but Presidents remain accountable in other ways, see Fitzgerald, 457 U.S. at 757 , 102 S.Ct. 2690 (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. § 595 (a)(2), (c). If the President continues to exercise his attorney-client privilege in the face of a congressional subpoena, and if Congress believes that the President has committed “high Crimes and Misdemeanors,” U.S. Const, art. II, § 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 l'efusal to turn over information in response to congressional subpoenas).

*1123 II

During Lindsey’s several grand jury appearances he invoked 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 fundamental, Lindsey’s affidavit, [¶] ]] and the affidavit of White House Counsel Charles F.C. Ruff suggest that the communications 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 impeachment. But nowhere do they demonstrate that Lindsey rendered that advice in his capacity as a lawyer, ie., that “the lawyer’s professional skill and training would have value in the matter,” Restatement § 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 privileged; 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 advice becomes even more difficult because not only does Lindsey 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 perfoi'med many non-legal functions, such as giving policy advice, writing speeches, and performing-various political tasks. See Stephen 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 Consumer 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 § 122 cmt. c (whether privilege 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,” Restatement § 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 possible impeachment proceedings (implications we have hardly begun to consider). See Maj. Op. at 1112-1113; 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 official legal advice, the district court could use the remand to enrich the record by, for example, inviting former *1124 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, § 3. See Swidler, — U.S. -, - n. 4, 118 S.Ct. 2081 , 2085-86 n.4, 141 L.Ed.2d 379 , (noting lack of empirical evidence in support of limiting the privilege); Jaffee, 518 U.S. at 16 & n. 16, 116 S.Ct. 1923 (relying on amicus briefs citing-psychology and social work studies); Trammel, 445 U.S. at 48, 52 , 100 S.Ct. 906 (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 requires 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. § 3282 (establishing 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 expeditiously, he is free to do so.

Ill [¶]

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