Amicus Curiae Brief — Office of the President v. Office of Independent Counsel

No. 96-1783

RENATO SPEEA ME ELE IY STEED IESE” IEEE GED LES SEE ALEGRE GAN!

In the Supreme Court of the Grited States

t)

OBER TERM. 1996

BRIEF AMICUS CURIAE FOR

THE UNITED STATES,

THROUGH THE ATTORNEY GENERAL

SUPPORTING CERTIORARI

ACTING

~ | A

‘

ly f

1

i ‘ ri

4

fis

j U. RE

4 4

i( fis 1) i

. ;

G /

EDWIN S. KNEEDLER

MICHAEL R. DREEBEN

Deputy Solicits

De partment of Just (

Washington. D.C. IDS 380-0007

} , — wi ) 7

SUZ) D14-h J1i

t% Le er %} bi ie

Peer See Cg MG OI ott ng” a tin, PR HS De

slik Pe HE re tenet OM el eA aR ied i

QUESTIONS PRESENTED

1. Whether the Office of the President may decline to

produce documents sought by a federal grand jury sub-

poena on the ground that the documents are protected by

an attorney-client privilege.

2. Whether the Office of the President may decline to

produce documents sought by a federal grand jury sub-

poena on the ground that they are protected by the work

product doctrine because they were prepared by its at-

torneys in connection with grand jury proceedings and

legislative proceedings.

(I)

TABLE OF CONTENTS

Page

PICOPORE OF the United States oo... ccs.ccccscccsevenscaccessecereese l

SIESTA ETT OL ROE ST ANIS TORRORO TL RO 2

I cata chet edna tel ded cntcgl sik ai weimeecastiesiaakbark 7

NN as netcehikh cca tb sciish badd dds nidicanaebeG meine eenccen menos 21

TABLE OF AUTHORITIES

Cases:

Certain Complaints Under Investigation, In re,

783 F.2d 1488 (11th Cir.), cert. denied, 477 U.S.

RI tac ciniainichicusndideanbiesbabempaicnnexdodivacmeumsieses 16

Duplan Corp. v. Deering Milliken, Inc., 397 F.

I hes ai rac cisevaetcbainany, 17

Franklin v. Massachusetts, 505 U.S. 788 (1992) .. 17

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

Be IE Aiur dareltbsiskanccenaieneasaensciialmumnasnskeeeitinasties 16

Grand Jury Proceedings, In re, 473 F.2d 840 (8th

Se SIE assaihnnthurdbeieantuieiiesdnubeaisidncsebiicanbpencueciweiinee 16

Grand Jury Subpoena, In re, 599 F.2d 504 (2d Cir.

Se RA SRE SES INET TE SREP SPE Se RR BOE DTaP PED NSD TE 16

Hartman v. Remington Arms Co., 143 F.R.D. 673

SG PIED Gsiinth chcduiciancceshioiornsdadisevsepeistcnimdepsseons 16-17

Hickman v. Taylor, 329 U.S. 495 (1947) ............... 16, 18

John Doe, In re, 662 F.2d 1073 (4th Cir. 1981), cert.

denied, 455 U.S. 1000 (1982) ..............cccccesscccecscesces 16

Kelly v. City of San Jose, 114 F.R.D. 653 (N.D.

Ra MINIT cai cctadiiaciskaisasuushnidensdGhdsliguniuccioovernunsuccnnsaues 16

King v. Conde, 121 F.R.D. 180 (E.D.N.Y. 1988) .... 16

Mead Data Cent., Inc. v. United States Dep’t of

Air Force, 566 F.2d 242 (D.C. Cir. 1977) .............. 10

NLRB v. Sears, Roebuck & Co., 421 U.S. 132

PEE sictcthi anit ehtuidsarysxdeusemciecendecceieiabuvedsenrmesieainscs 10

Nixon v. Administrator of General Services, 433

ene EE UE satkctnlbet nbinnnaddbigtiescdsianuasbcatinaciinnnacs 15

Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973) ...... 16

Roviaro v. United States, 353 U.S. 53 (1957) ........ 16

(IIT)

IV

Cases—Continued: Page

United States v. Arthur Young & Co., 465 U.S. 805

fe | | RETRO CNN eR Nee IM NOT AI RN to ern eee 5

United States v. Burr, 25 F. Cas. 187 (C.C. Va.

Ry Cs FEE kins coker hee chedariesateniomead 16

United States v. Davis, 636 F.2d 1028 (5th Cir.),

cert. denied, 454 U.S. 862 (1981) .........ccccscsccssescceces 18

United States v. Gillock, 445 U.S. 360 (1980) ........ 9

United States v. Morton Salt Co., 338 U.S.

OE FEE pind daccbidicaseecikicliveichvscmcsaiebibatelatdsipeirnas 20

United States v. Nixon, 418 U.S. 683 (1974)... 4, 8, 15, 16

United States v. Nobles, 422 U.S. 225 (1975) ........ 18

United States v. North, 910 F.2d 843, withdrawn

and superseded in part on rehg, 920 F.2d 940

(D.C. Cir. 1990), cert. denied, 500 U.S. 941 (1991) . 15

United S. .es v. R. Enterprises, Inc., 498 U.S.

BO CIRO pinicicnecis kine intijeninuanens 15, 16

Upjohn Co. v. United States, 449 U.S. 383

RIED clasavscous scdnsasessouceinicisionsotneleueickseematbnaabnsarentes &, 9, 11

Constitution, statutes and rules:

U.S. Const.:

a6 Fe A, Bi ss ac pcecnaeian 20

FO TE EE insists ccd auccicsvucaininkaininaioatansacceiiaaiininteaneats 20

Classified Information Procedures Act, 18 U.S.C.

Fi: BEL ssscnitinncenica stngastccephaiaaicivw peinciseabeabnamendintiens 12

Freedom of Information Act, 5 U.S.C. 552(b)(5) ..... 10

7 BEES Se * 5 ER etores Mise eni ener anermn Peres Arsen ayes Or 11

WE as Bes. eck cadcninkavasaickabcneudithemthoeaeecneenks 11

RS SE EMU icicle cua Ghgha Sanaa eeu eataesbionnions Gaba aah anon 11

EE et SEE 5k. lic kak sacuick coded aasekien ararekdcuaen vatnebennemalaeeds 11

OER BE Sibcoccn desakenakcevstace oiestintaatcoeeaesemabenenees 22

OE FF Oe Ar NE is ccc. ci'caesumeahenkakenseaesiacouantadeunmeaaans 5, 17

Oe Fs eee ME UMIC ES scccith veidssaackuicaiacmcaseaa anaes 16

Oe TE ak MEE cic cadaceclgsedanieaesienaniaias 11

ee Te os iciscnaisasnapeoncinmeias ane 1,is

Oe TT Te Oe i nccis sivach uses antpiiacaeanastinns 13

OF RE FES sta ee cntctaln coicsiccigs tied acncaindeeadsein 1

ae, Fe EA Fe See: akcovicasrchvivscceniantvndeeeaiaushaeenss 16

cen PRT mem

Statutes and rules—Continued: Page

Fed. R. Evid. :

MOE GUI sitccn nsssconuniebuacis tava dacachdantin Saeiobaceniaas: 4, 8, 9, 14

NNN TRIG S Fosse bevsccccsasecscncsnerbensxaseus) benbevvadcineneans 10

eR EIN sicdivsnccuechbisscsiatbte’sventameniaiaeonuenenasians 10

NN TIED si cintincsstaiondevsncdesnidsmcumcnvenecbiigenauncenaaaae 6

Miscellaneous:

ABA Standing Committee on Ethics and Professional

Responsibility, Formal Opinion 97-405 (Apr. 19,

SIGS divested incase ieaiconapetticesadiniaientennaapaaae: 11

H.R. Rep. No. 2622, 83d Cong., 2d. Sess. (1954) ....... 17

Letter from the Attorney General to the President

CRE St, -BUOOY oc cicsccsasuinwinguiossebuadiedeapeesatemsbbanidaes 19

Memorandum for the Attorney General re:

Confidentiality of the Attorney General’s

Communications in Counseling the President,

© ide, Gib 5s: GEE CE nccdinvdtioeaernetieien 8-9, 19

Response to Congressional Requests for Information

Regarding Decisions Made Under Independent

Counsel Statute, 10 Op. O.L.C. 68 (1986) ............... 19

Restatement (Third) of the Law Governing

Lawyers, Proposed Final Draft No. 1 (approved

BOS TR, TOD icchnisipivstastonmnicntarsaatasntcewiebiaes 9-10, 11, 14, 19

Rules of Evidence for United States Courts and

Magistrates, 56 F.R.D. 183 (1972) .................eeeees §

In the Supreme Court of the Giuted States

OCTOBER TERM, 1996

No. 96-1783

OFFICE OF THE PRESIDENT, PETITIONER

Vv.

OFFICE OF INDEPENDENT COUNSEL, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF AMICUS CURIAE FOR

THE UNITED STATES,

ACTING THROUGH THE ATTORNEY GENERAL,

SUPPORTING CERTIORARI

INTEREST OF THE UNITED STATES

Petitioner and respondent represent discrete interests

of the United States in this specific litigation. The issues

presented, however, implicate fundamental concerns of

the United States that extend far beyond the particular

circumstances of this case. Thus, although special coun-

sel have been appointed by the Department of Justice to

represent the Office of the President in this case, the

United States has a broad and substantial interest in the

ability of the President and Executive Branch agencies

generally to obtain frank, fully informed, and confiden-

tial legal advice. And although the Independent Counsel

has the “authority to exercise all investigative and prose-

cutorial functions and powers of the Department of Jus-

tice” with respect to matters within his jurisdiction, 28

U.S.C. 594(a), the Attorney General is otherwise respon-

sible for federal criminal prosecutions. See 28 U.S.C.

597(b) (authorizing Attorney General and Solicitor Gen-

(1)

2

eral to participate as amicus curiae in independent coun-

sel cases).

The unique nature of this case led the Attorney Gen-

eral to conclude at the time this dispute arose that the

White House should be represented by specially ap-

pointed counsel, who would be in a position to review the

attorney notes subpoenaed by the Independent Counsel

and respond to the motion to compel on that basis.’ The

Attorney General reserved, however, the right to file a

brief addressing legal issues of broader interest to the

United States in appropriate circumstances. The opinion

of the court of appeals now presents those circum-

stances.”

STATEMENT

l. a. On July 11, 1995, First Lady Hillary Rodham

Clinton met with David Kendall, an attorney represent-

ing both the President and Mrs. Clinton in their personal

capacities, at the White House Residence for the purpose

of obtaining legal advice. Late in the meeting, two attor-

neys from the White House Counsel’s Office, Jane Sher-

burne and Miriam Nemetz, joined them. Ms. Nemetz

took some notes during the meeting. The subject of that

part of the meeting was Mrs. Clinton’s activities in the

period immediately following the suicide of White House

Deputy Counsel Vincent Foster in 1993. At the time of

the meeting, investigations relating to what has become

known as “Whitewater,” including the handling of docu-

ments in the aftermath of the Foster suicide, were being

conducted by the Independent Counsel, the Senate

Whitewater Committee, the House Banking and Gov-

ernment Reform Committees, the Federal Deposit Insur-

ance Corporation, and the Resolution Trust Corporation.

| The Department of Justice has not reviewed the notes and is not

aware of their contents.

2 The district court opinion, and all proceedings in both lower

courts, were subject to a seal order, and prior to this stage we did not

review them.

oe

3

The Independent Counsel had scheduled a deposition of

Mrs. Clinton regarding the Foster document matter for

July 22, 1995. Pet. App. 88a-89a, 94a.

b. Early in January 1996, a White House employee

found in the White House Residence a copy of billing re-

cords relating to work performed by members of the

Rose Law Firm, including Mrs. Clinton. Those records

were responsive to a May 1994 grand jury subpoena to

Mrs. Clinton. On January 19, 1996, the Independent

Counsel issued a subpoena for Mrs. Clinton to testify be

fore a Washington, D.C., grand jury regarding the dis-

covery of the billing records. Other investigations re-

garding the discovery of the records were being under-

taken by the Senate Whitewater Committee and other

federal agencies. Mrs. Clinton testified before the grand

jury on January 26, 1996. During breaks in her testi-

mony, Mrs. Clinton met in a private room in the court-

house with Kendall, his partner Nicole Seligman, White

House Counsel John Quinn, and Sherburne. After the tes-

timony was completed, Mrs. Clinton met at the White

House Residence with Sherburne, Kendall, and Seligman.

Sherburne took notes during those meetings. Pet. App.

66a n.3, 89a-90a, 94a.

2. On June 21, 1996, on the application of the Inde-

pendent Counsel, a grand jury in the Eastern District of

Arkansas issued a subpoena to “The White House c/o

Jane Sherburne, Special Counsel to the President.” The

subpoena sought, inter alia (Resp. C.A. App. 2-3):

All documents created during any meeting at-

tended by any attorney from the Office of the Coun-

sel to the President and Hillary Rodham Clinton (re-

gardless whether any other person was present), be-

tween July 20, 1993, and the present, which relate in

any way to the death of Vincent W. Foster, Jr., docu-

ments in the office of Vincent W. Foster, Jr., at the

time of his death, or events between July 20 and July

27, 1993.

1

The White House Counsel identified nine sets of notes

that were responsive to the subpoena, but refused to pro-

duce them on the ground of attorney-client privilege and

the work product doctrine. The Independent Counsel

then moved to compel production, but only of the Ne-

metz notes of the July 11, 1995, meeting, and the Sher-

burne notes of the January 26, 1996, meetings. Pet. App.

2a-3a.

3. On November 26, 1996, the district court denied the

Independent Counsel’s motion to compel production.

Pet. App. 62a-83a. The court concluded that the law in

this area is “uncertain,” that “Mrs. Clinton, as the func-

tional equivalent of an officer or employee of the White

House, considered her communications with lawyers

from the White House Counsel’s Office and personal

counsel, as did those lawyers, to be confidential and for

the purpose of receiving legal advice,” and that the at-

torney-client privilege should protect the conversations

for that reason—regardless of whether the privilege le-

gally applies. Jd. at 80a. The court also held that the

notes are “work product of the type that is clearly pro-

tected from disclosure to the grand jury.” Jd. at 81a.

4. a. A divided panel of the Eighth Circuit reversed.

Pet. App. la-6la. The majority reasoned that the princi-

pal question in this case—“whether an entity of the fed-

eral government may use the attorney-client privilege to

avoid complying with a subpoena by a federal grand

jury,” Pet. App. 5a—is governed by Rule 501 of the Fed-

eral Rules of Evidence. That Rule provides that “the

privilege of a witness, person, government, State, or po-

litical subdivision thereof [is] governed by the principles

of the common law as they may be interpreted by the

courts of the United States in the light of reason and ex-

perience.” In the majority’s view, United States v.

Nixon, 418 U.S. 683 (1974), “is indicative of the general

principle that the government’s need for confidentiality

may be subordinated to the needs of the government’s

own criminal justice processes.” Pet. App. 15a. In the

5

context of attorney-client communications, the court

held, the governmenta! interest in confidentiality can

never overcome a grand jury subpoena. See id. at 17a-

20a.

The court rejected the argument that the governmen-

tal attorney-client privilege is supported by the same ra-

tionale—and should have the same scope—as the corpo-

rate attorney-client privilege recognized by this Court in

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

court believed that White House lawyers require confi-

dentiality less than their corporate counterparts because

“the actions of White House personnel, whatever their

capacity, cannot expose the White House as an entity to

criminal liability,” and the White House therefore does

not have a compelling interest in ferreting out miscon-

duct by its employees. Pet. App. 17a. In addition, the

court found it “significant that executive branch employ-

ees, including attorneys, are under a statutory duty to

report criminal wrongdoing by other employees to the

Attorney General” pursuant to 28 U.S.C. 535(b). Jbid.

Finally, drawing an analogy between the responsibilities

of government lawyers and the responsibilities of audi-

tors to “maintain total independence from the client at all

times” and to assume “public obligations” as a “public

watchdog,” id. at 17a-18a (quoting United States v.

Arthur Young & Co., 465 U.S. 805, 817-818 (1984)), the

court concluded that the “strong public interest in honest

government and in exposing wrongdoing by public offi-

cials would be ill-served by recognition of a governmental

attorney-client privilege applicable in criminal proceed-

ings inquiring into the actions of public officials,” id. at

18a.

3 The court rejected the argument that the presence of Mrs. Clin-

ton’s private attorneys “affects the calculus in this case,” Pet. App. 20a,

finding no “common interest” sufficient to render the private and public

representations jointly privileged, id. at 2la-23a. And the court re-

jected the district court’s reasoning that Mrs. Clinton’s subjective belief

6

The court also rejected application of the work prod-

uct doctrine, because it believed that White House Coun-

sel was not “preparing for or anticipating some sort of

adversarial proceeding involving his or her client.” Pet.

App. 25a-26a. It found “unpersuasive” the White House’s

position that its lawyers were preparing for the Inde-

pendent Counsel’s investigation, because the “OIC is not

investigating the White House, nor could it do so.” Jd. at

26a. Nor, in the court’s view, did congressional investi-

gations trigger the work product doctrine, because they

were directed not at the White House, but at individuals,

and could result only in “political”—not legal—harm. Id.

at 26a-27a.

b. District Judge Kopf dissented. Pet. App. 29a-6la.

He believed that recognition of the attorney-client privi-

lege in this setting falls squarely within proposed Federal

Rule of Evidence 503, as well as other authoritative

sources. See id. at 33a-38a. In his view, the fact that

this is a criminal proceeding has no bearing on the appli-

cation vel non of the attorney-client privilege, id. at 36a,

and the public interest favors recognition of a privilege

so that governmental entities may obtain legal advice

about how to obey the law, id. at 37a-44a. Judge Kopf

concluded, however, that although the ordinary prereq-

uisites of the privilege were satisfied, see id. at 44a-49a, it

generally can be invaded in the unique setting of a sub

poena issued in connection with an independent counsel

investigation on a showing of need and with appropriate

procedural protections, id. at 5la-55a. In this case, Judge

Kopf reasoned that producing the notes would unjustifia-

bly invade Mrs. Clinton’s personal attorney-client privi-

lege, because both she and the White House Counsel rea-

sonably expected the communications to be confidential.

Id. at 59a-6la.

that a privilege attached to the conversations in question was sufficient

by itself to warrant refusing to enforce the subpoena. /d. at 23a-25a.

7

DISCUSSION

The United States is ordinarily entitled to the same at-

torney-client privilege that is available to private indi-

viduals and corporations. This case, however, does not

arise from the ordinary situation in which the privilege is

asserted by its holder against an outside entity. This case

involves claims to information by prosecutorial interests

of the United States represented by the Independent

Counsel, on the one hand, and assertion of the attorney-

client privilege for the same information by the Office of

the President, on the other. The grand jury, working in

conjunction with the Independent Counsel, has issued a

subpoena and, through the Independent Counsel, has

sought judicial enforcement of it. The primary position

of the Office of the President is that the attorney-client

privilege is absolute and therefore necessarily prevails

against the grand jury subpoena. The position of the In-

dependent Counsel and the court of appeals, by contrast,

is that there is no attorney-client privilege in this setting

and that the grand jury subpoena therefore necessarily

prevails.

We see the matter from a different perspective. A

purely intra-Executive Branch disagreement over the

availability and use in court of information held by a fed-

eral agency would typically be resolved within the Ex-

ecutive Branch based on consideration of the various in-

terests of the United States as a whole. In that setting,

the Attorney General, who is charged with conducting

litigation on behalf of the United States and its agencies,

is in a position to reconcile all litigation and non-litigation

interests and to speak for the single client (the United

States) in all of its aspects—to assert or waive in litigation

privileges that might otherwise be absolute as against

parties outside the Executive Branch. Although in

criminal cases the government’s investigative and prose-

cutorial interests have great weight, there may be cases

in which those interests are attenuated or are outweighed

by the need for confidentiality.

8

Because this case involves a grand jury subpoena issued

at the behest of an independent counsel—who is vested

with responsibility for only one discrete interest of the

United States and who does not operate under the direct

supervision of the President or the Attorney General—

there is no opportunity for the weighing of all relevant

interests of the United States within the Executive

Branch. That task thus necessarily falls to the district

court in ruling on the Independent Counsel’s motion to

enforce the grand jury subpoena. In applying the law of

privileges under Rule 501 in that setting, the President’s

interest in confidentiality supports application of the at-

torney-client privilege. The demands of criminal law en-

forcement, however, may require in a particular instance

that the privilege give way. Cf. United States v. Nixon,

418 U.S. 683 (1974).

In holding that the privilege automatically gives way

in response to an otherwise valid grand jury subpoena,

the court of appeals’ decision lays open the White House

Counsel (and by extension federal agency counsel) to an

ever-present potential for unrestrained intrusion into

their ongoing attorney-client communications. That re-

sult would impair the ability of the President (and the

heads of federal agencies) to obtain frank, fully informed,

and confidential legal advice. The same is true of the

court of appeals’ categorical refusal to afford any protec-

tion through the work product doctrine. In light of the

court of appeals’ legal errors and the resulting practical

consequences, review by this Court is warranted.

1. The attorney-client privilege “functions to protect

communications between government attorneys and cli-

ent agencies or departments * * * much as it operates

to protect attorney-client communications in the private

sector.”. Memorandum for the Attorney General re:

Confidentiality of the Attorney General’s Communica-

tions in Counseling the President, 6 Op. O.L.C. 481, 495

9

(1982) (1982 OLC Opinion). The rationale for the gov-

ernmental privilege is much the same as that for the

corporate privilege recognized in Upjohn Co. v. United

States, 449 U.S. 383 (1981). To paraphrase the Court’s

reasoning in Upjohn:

In light of the vast and complicated array of regu-

latory legislation confronting [federal agencies],

[agencies], like most individuals, constantly go to

lawyers to find out how to obey the law, particularly

since compliance with the law in this area is hardly

an instinctive matter.

Id. at 392 (citations and internal quotation marks omit-

ted). The purpose of the privilege in the governmental

context, as in the private context, is “to encourage full

and frank communication between attorneys and their

clients and thereby promote broader public interests in

the observance of law and administration of justice.” Id.

at 389.

All of the authoritative sources agree with that propo-

sition—and none recognizes any categorical exception to

the privilege in criminal proceedings. The proposed

Federal Rules of Evidence, whose status as a solid indica-

tion of the scope of the “common law” of privilege under

Rule 501 has frequently been recognized, see, e.g., United

States v. Gillock, 445 U.S. 360, 367-368 (1980), included a

rule regarding the attorney-client privilege. That rule

defined “client” to include “a person, public officer, or

corporation, association, or other organization or entity,

either public or private.” Rules of Evidence for United

States Courts and Magistrates, 56 F.R.D. 183, 235 (1972)

(emphasis added). Similarly, the Restatement (Third) of

4 See also 6 Op. O.L.C. at 483 (“(T]he Attorney General may assert

the common-law privilege for attorney-client communications, which

has been codified in Rule 501 of the Federal Rules of Evidence * * *,

to protect from disclosure in litigation certain confidential communica-

tions of a legal advisory nature which were prepared for the Office of

the President.”).

10

the Law Governing Lawyers § 124, Proposed Final Draft

No. 1 (approved May 28, 1996) (Restatement), states that

“[t]he attorney-client privilege extends to a communica-

tion of a governmental organization,” and Uniform Rule

of Evidence 502(a)(1) defines “client” to include govern-

mental bodies.” The attorney-client privilege of federal

agencies in particular (along with the work product doc-

trine) has been recognized and affirmed under the

Freedom of Information Act.°

The court of appeals’ rejection of any attorney-client

privilege in this setting rested on two fundamentally er-

roneous propositions: (1) that the White House is less in

need of confidential legal advice than a corporation be

cause the White House as an entity has no exposure to

legal liability and has no compelling interest in conduct-

ing investigations to ferret out misconduct by its employ-

ees, Pet. App. 17a; and (2) that White House Counsel and

other government attorneys are properly analogized to

outside auditors who serve as “public watchdogs” and

must “maintain total independence from the client at all

times,” id. at 17a-18a.

Contrary to the court of appeals’ view, attorneys in the

government, like their counterparts elsewhere, have du-

° Uniform Rule 502(d)(6) limits application of the privilege in the

governmental context to situations involving a pending investigation

or litigation and requires a finding by the court that disclosure will

“seriously impair” the agency’s pursuit of the investigation or litiga-

tion. As the court of appeals recognized (Pet. App. 8a n.5), many States

that have adopted the Uniform Rules have omitted this qualification.

® FOIA Exemption 5, 5 U.S.C. 552(b)\(5), protects from disclosure

materials that would normally be privileged from discovery in litiga-

tion with the agency. NLRB v. Sears, Roebuck & Co., 421 U.S. 132,

149 (1975). In Sears, Roebuck, this Court found it “clear that Congress

had the attorney’s work-product privilege specifically in mind when it

adopted Exemption 5 and that such a privilege had been recognized in

the civil discovery context by the prior case law.” Jd. at 154. The

lower courts have routinely held that Exemption 5 applies as well to

attorney-client privileged materials. See, e.g., Mead Data Cent., Inc.

v. United States Dep't of Air Force, 566 F.2d 242, 252-253 & n.20 (D.C.

Cir. 1977); Pet. 18 n.5 (citing cases).

1]

ties of loyalty and confidentiality to their client (see ABA

Standing Committee on Ethics and Professional Respon-

sibility, Formal Opinion 97-405 (Apr. 19, 1997), slip op. 4

5; Restatement § 156 cmt. d), and a governmental client

plainly does have a compelling interest in investigating

allegations of wrongdoing by its employees. Moreover,

the need of the President and other Executive Branch

officials to obtain frank, fully informed, and confidential

legal advice so that they may conform their conduct to

the law is at least as great as that of non-governmental

clients. Thus, where a governmental attorney-client

communication satisfies the ordinary prerequisites of the

privilege, the communication is privileged from disclo-

sure to outsiders to the same extent—and for the same

reasons—as a corporate attorney-client communication

would be.

2. a. The fact that the federal government enjoys an

absolute attorney-client privilege as against outside par-

ties does not, however, resolve this case. It is necessary

to consider as well how decisions are made within the

Executive Branch whether to assert or waive privileges

in litigation, including in grand jury investigations. If an

agency possesses information protected by the attorney-

client privilege, no abrogation or waiver of that privilege

would result from furnishing the information to the At-

torney General, who represents the interests of the

United States as a whole, including its constituent agen-

cies. See 28 U.S.C. 511, 512, 516, 538, 547. The only

question at that stage would be whether the need for the

information outweighs any adverse impact on the effec-

tive provision of legal advice to the agency possessing the

information that might result from the intra-Branch dis-

closure.’ If information is obtained by the Attorney Gen-

7 The same principles would apply within a private corporation

with respect to information protected by the attorney-client privilege

under Upjohn. No waiver of the privilege would result if counsel in

one division of the corporation furnished the privileged information to

counsel in another division, or to the general counsel of the corporation

12

eral, a further question may later arise about whether to

use the information in criminal or civil litigation. Al-

though the Attorney General’s weighing of the relevant

interests informing that decision would ordinarily occur

in consultation with the agency involved, the agency

could, if necessary, present any irreconcilable differences

to the President.°

Where the Attorney General seeks information di-

rectly relating to the commission of a federal crime, the

Justice Department’s experience indicates that it would

be rare for the Attorney General to strike the balance

against obtaining it, given the compelling federal interest

in investigation and prosecution of federal crimes.” The

Attorney General may obtain or review the information

with the understanding that there would be further con-

sultation with the agency concerned before the material

would be used in a manner that would abrogate the at-

torney-client (or other) privilege. After obtaining the in-

formation, there may often be situations in which the

Attorney General, after again weighing the relevant con-

siderations, would in turn choose to submit evidence pro-

tected by the governmental attorney-client privilege to a

grand jury, or to introduce it into evidence at trial." But

as a whole. Whether to share the information in that manner would be

a matter of internal policy to be resolved by the responsible decision-

makers within the corporation, taking into account the various inter-

ests of the corporation.

8 Both parties agree. See Pet. 20 n.6 (“any such intrabranch dis-

putes would ordinarily * * * be resolved by consultation between

agency heads or, if necessary, by the chief executive”); Br. in Opp. 25

(discussing “internal negotiation process within the Executive Branch”).

% That understanding is consistent with the Independent Counsel's

description of the facts of this case, in which the White House has pro-

duced “numerous sets of notes taken by White House attorneys in in-

terviews of current and former White House employees.” Resp. C.A.

App. 18 (Declaration of John D. Bates).

0 A similar balancing of interests takes place within the Execu-

tive Branch in deciding under the Classified Information Procedures

Act, 18 U.S.C. App. III, whether classified information will be used or

disclosed in a criminal prosecution.

13

there may also be situations in which the potential chill-

ing of the effective provision of legal advice to the

agency concerned would outweigh the prosecution’s need

to use particular information—eg., where the informa-

tion bore less directly on the investigation or trial, or

where the information sought reflects, not the historical

matters under investigation, but rather the agency’s con-

sideration of the request for information itself. What is

significant is that, in the ordinary case, the Attorney

General, in consultation with other Executive Branch

officials and subject to the ultimate authority of the

President, would weigh all of the relevant interests of the

single client, the United States.

b. When a grand jury, at the behest of an independent

counsel, seeks information from an Executive Branch

agency, the balancing process described above cannot

fully function. Neither the President nor any other Ex-

ecutive Branch official is in a position to determine the

extent of the independent counsel’s need for the informa-

tion. Those officials cannot realistically require the in-

dependent counsel to reveal the precise status of his in-

vestigation, and the very purpose of the independent

counsel statute is to preclude Executive Branch officials

from exercising operational control over the independent

counsel’s investigation. By the same token, the inde-

pendent counsel, who exercises only the “investigative

and prosecutorial functions and powers of the Depart-

ment of Justice and the Attorney General” in a particu-

lar defined matter, 28 U.S.C. 594(a), has no institutional

competence or authority to balance the prosecutorial

need for the information against the potential threat to

the ability of the President or other high official effec-

tively to obtain legal advice." In short, no single official

1! The independent counsel statute authorizes an independent

counsel to “determinjfe}] whether to contest the assertion of any testimo-

nial privilege,” 28 U.S.C. 594(a)(5), but it does not authorize an inde-

pendent counsel to decide whether a privilege will be asserted or

waived by the United States in the first instance.

14

is in a position to weigh all relevant considerations and

speak for the United States as a whole in this situation.

Under these circumstances, a district court, in ruling

on an independent counsel’s motion to compel produc-

tion, must resolve the dispute over the availability and

use of the information. In so doing, a district court

should be mindful that the governmental attorney-client

privilege is absolute as against outside parties; the court

should be mindful as well of the respective statutory in-

terests and roles of the agency concerned, the Attorney

General, and the independent counsel, and the constitu-

tional office and responsibilities of the President.” Those

considerations are fully accommodated by Rule 501 of the

Federal Rules of Evidence, which states that “[e]xcept as

otherwise required by the Constitution of the United

States or provided by Act of Congress * * * , the privi-

lege ofa * * * government * * * shall be governed by

the principles of the common law as they may be inter-

preted by the courts of the United States in the light of

reason and experience.”

We submit that against the backdrop of the governing

constitutional and statutory framework, “reason and ex-

perience” suggest that the district court should, in ruling

on the motion to compel, accommodate the competing

interests at stake in a manner similar to the accommoda-

tion that takes place in an ordinary, non-independent-

counsel context.” Such an approach would not unsettle

2 Our position is consistent with the Restatement, § 124 cmt. b,

which provides:

More particularized rules may be necessary where one agency

of government claims the privilege in resisting a demand for in-

formation by another. Such rules should take account of the

complex considerations of governmental structure, tradition,

and regulation that are involved.

13 For example, if a government attorney learned that an official

had destroyed subpoenaed documents or paid off a potential witness,

see Br. in Opp. 20, the privilege should surely yield. In contrast, if a

subpoena sought otherwise readily available factual material, which is

RABAT Bi heS o Patt s

NO Sato Ss Nan eat LN Ta:

Sa <dolteeiemataleiesds BieBiers >

15

the legitimate expectations of agency officials and coun-

sel, because it would resemble the treatment within the

Executive Branch of confidential communications poten-

tially relevant to a criminal investigation or trial. Nor

would this approach hamper the investigation and prose-

cution of crimes, since enforcement activities outside the

independent counsel setting would be governed by simi-

lar considerations.

Neither court below attempted the accommodation of

interests that we believe is required, and at this stage we

therefore do not address what the precise standard of re-

view should be. A useful analogy, however, can be drawn

to the resolution of assertions of executive privilege. See

Nixon v. Administrator of General Services, 433 U.S.

425, 447 (1977) (United States v. Nixon held that “in the

case of the general privilege of confidentiality of Presi-

dential communications, its importance must be balanced

against the inroads of the privilege upon the effective

functioning of the Judicial Branch”).

In this respect, the court of appeals erred in stating

that the Nixon test would not be satisfied unless the sub-

poenaed party could show “that there is no reasonable

possibility that the category of materials the Government

seeks will produce information relevant to the general

subject of the grand jury’s investigation.” Pet. App. 18a

n.9 (quoting United States v. R. Enterprises, Inc., 498

U.S. 292, 301 (1991)); ef. United States v. North, 910

F.2d 843, 952 (Silberman, J., concurring in part and

dissenting in part), opinion withdrawn and superseded in

part on other grounds on reh’g, 920 F.2d 940 (D.C. Cir.

1990), cert. denied, 500 U.S.. 941 (1991). That is the

standard that any grand jury subpoena must satisfy, even

when no privilege is claimed. That standard therefore is

inconsistent with this Court’s direction that a district

cous, must “treat the subpoenaed material [for which

executive privilege is asserted] as presumptively privi-

embedded in a legal analysis provided by an attorney to an agency

head, the privilege should ordinarily prevail.

16

leged,” United States v. Nixon, 418 U.S. at 718, and

must require, as a prerequisite to disclosure, that the

prosecutor demonstrate that the subpoenaed material is

“essential to the justice of the [pending criminal] case,”

ibid. (quoting United States v. Burr, 25 F. Cas. 187, 192

(C.C. Va. 1807) (No. 14,694) (Marshall, J.)). See also ibid.

(“privilege must yield to the demonstrated, specific need

for evidence”); Nixon v. Sirica, 487 F.2d 700, 717-719

(D.C. Cir. 1973) (en bane; per curiam) (applying need

standard in grand jury setting to claim of executive

privilege). As in other settings, a district court may

have to receive information from the parties ex parte and

review the materials in camera in order to determine

whether disclosure should be ordered."

4 Respondent argues (Br. in Opp. 24-25 & n.30) that “(t}his Court

has consistently rebuffed efforts to require” the sort of accommoda-

tion approach we propose. It is true that the Court has rejected such

an approach as an ordinary feature of the enforcement of grand jury

subpoenas, in cases in which no privilege has been asserted. See R.

Enterprises, 498 U.S. at 298. But such tests are routinely used in con-

nection with certain types of privilege claims, most notably the work

product doctrine. See, eg., Hickman v. Taylor, 329 U.S. 495, 511-512

(1947) (“[A] burden rests on the one who would invade thle} privacy [of

an attorney’s course of preparation] to establish adequate reasons

to justify production through a subpoena or court order.”); Fed. R. Civ.

P. 26(b)(3) (requiring a showing that “the party seeking discovery has

substantial need of the materials in the preparation of the party’s case

and that the party is unable without undue hardship to obtain the sub-

stantial equivalent of the materials by other means”). Other courts

have applied the work product test in the context of criminal grand

jury proceedings. See, e.g., In re John Doe, 662 F.2d 1073, 1078 (4th

Cir. 1981), cert. denied, 455 U.S. 1000 (1982); In re Grand Jury Investi-

gation, 599 F.2d 1224, 1228-1232 (3d Cir. 1979); In re Grand Jury Sub-

poena, 599 F.2d 504, 512-513 (2d Cir. 1979); In re Grand Jury Proceed-

ings, 473 F.2d 840, 842-849 (8th Cir. 1973). See also Roviaro v. United

States, 353 U.S. 53, 62 (1957) (informer privilege); In re Certain Com-

plaints Under Investigation, 783 F.2d 1488, 1520 (11th Cir.) (privilege

for confidential communications among judges and their staffs), cert.

denied, 477 U.S. 904 (1986); King v. Conde, 121 F.R.D. 180, 190-195

(E.D.N.Y. 1988) (“governmental privilege” for confidential police mate-

rials); Kelly v. City of San Jose, 114 F.R.D. 6538, 660-671 (N.D. Cal.

1987) (same); Hartman v. Remington Arms Co., 143 F.R.D. 673, 675

Speer eee ees

17

c. Respondent argues (Br. in Opp. 11-16) that 28

U.S.C. 535(b) is inconsistent with the assertion of a privi-

lege in the context of this case. Section 535(b) provides

that “[alny 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” must be reported to the Attor-

ney General, subject to certain exceptions. It was en-

acted to settle a dispute within the government by pro-

viding that the Department of Justice has general re-

sponsibility to investigate possible criminal wrongdoing,

regardless of where in the government such wrongdoing

comes to light. See H.R. Rep. No. 2622, 83d Cong., 2d

Sess. 1, 2 (1954).

It is uncertain whether Section 535(b) applies of its

own force to the Office of the President, compare Frank-

lin v. Massachusetts, 505 U.S. 788, 800-801 (1992)

(President not an “agency” for purposes of Administra-

tive Procedure Act), and that Section (which applies only

to violations of Title 18 and only those by federal employ-

ees) does not in any event cover the full range of situa-

tions in which a federal agency may come into possession

of evidence of a federal crime. We assume, however,

that the President (and other Executive officials) would

nevertheless recognize an equivalent duty to report to

the Attorney General information received by the White

House (or a federal agency) concerning federal criminal

violations. Any such reporting could have no effect on

the ability of the government to assert an attorney-client

privilege, however, since the officer to whom the infor-

mation must be reported—the Attorney General—is her-

self the lawyer for the Executive Branch. Indeed, it is

the Attorney General who ordinarily is responsible for

deciding (after weighing the relevant considerations)

whether to assert or waive the governmental attorney-

client privilege in litigation. Thus, a duty to report in-

(W.D. Mo. 1992) (trade secrets privilege); Duplan Corp. v. Deering Mil-

liken, Inc., 397 F. Supp. 1146, 1185 (D.S.C. 1974) (same).

18

formation concerning criminal violations to the Attorney

General is entirely consistent with the approach we

propose.

3. The work product doctrine also provides qualified

protection in the context of this case. See United States

v. Nobles, 422 U.S. 225, 239 (1975) (work product doc-

trine applicable in criminal cases); Hickman v. Taylor,

329 U.S. 495 (1947); United States v. Davis, 636 F.2d

1028, 1039 n.10 (5th Cir.) (“[I]t is uniformly held that the

work product doctrine applies to grand jury proceed-

ings.”) (collecting cases), cert. denied, 454 U.S. 862

(1981). The court of appeals rejected that conclusion

only because it believed that the materials at issue were

not prepared “in anticipation of litigation.” See Pet.

App. 25a-26a. That view is mistaken.

Where the subpoenaed governmental entity has a le-

gitimate interest in evaluating the assertion of applicable

privileges in response to the subpoena, with the resultant

potential for litigation, the attorney’s work product may

have been created “in anticipation of litigation” and thus

be within the scope of the work product doctrine. In this

case, one of Ms. Sherburne’s roles at the time of the

grand jury investigation was to “advise[] and assist[] the

Office of the President in determining whether any

privileges or other confidentiality interests should be as-

serted with regard to any of the information requested”

and to “negotiate[] with the [Independent Counsel] * *

* to accommodate interests in privileged material.” Pet.

App. 85a-86a.

In addition, the White House has represented that the

notes at issue here were prepared, at least in part, in or-

der to “facilitate[] advice to the Office of the President

regarding responses to congressional inquiries.” Pet.

App. 90a; accord id. at 88a. The work product doctrine

applies when a congressional committee is investigating

matters within the Executive Branch, because the

agency has a strong interest in assuring that the work of

its counsel in assisting agency officials to respond to the

Sy Sie BA ae a ala PL sety AS Bal ES A md

eT, pera er Te ee

19

investigation will not be subject to mandatory disclo-

sure—either to the committee or to third parties in sub-

sequent litigation. See Restatement § 136 cmt. h (litiga-

tion “includes a proceeding such as * * * an investiga-

tive legislative hearing”). The Attorney General and the

Office of Legal Counsel have consistently taken the posi-

tion that work product (like attorney-client communica-

tion) is protected in this setting. See Letter from the At-

torney General to the President 2 (May 23, 1996) (citing

Response to Congressional Requests for Information Re-

garding Decisions Made Under Independent Counsel

Statute, 10 Op. O.L.C. 68, 78 & n.17 (1986); 1982 OLC

Opinion, 6 Op. O.L.C. at 490 n.17, 494 & n.24).”

4. For the foregoing reasons, the court of appeals

erred in holding that neither the attorney-client privi-

lege nor the work product doctrine provides any protec-

tion at all to the subpoenaed notes. Those holdings have

sufficiently important consequences to warrant review

by this Court.

The court’s holding unduly diminishes the ability of

the President and other high-ranking Executive Branch

officials to obtain legal advice and act accordingly re-

5 Respondent argues (Br. in Opp. 27) that the enforcement of the

subpoena in this case was called for in any event “because the official

meetings in question occurred in the presence of third parties—namely,

Mrs. Clinton’s personal attorneys.” We disagree. There are important

governmental interests in ensuring that agency counsel will be able to

interview agency personnel as part of internal investigations, yet those

officials may be unwilling to participate if the agency were forced to

exclude their private counsel altogether in order to ensure that the in-

vestigation would be privileged. Thus, although the presence of Mrs.

Clinton’s private counsel does not prevent the government from waiv-

ing its privileges in the future, it did not result in an automatic abro-

gation of ali protection for the information.

Respondent also maintains (Br. in Opp. 26-27) that no valid privi-

lege can be asserted in this case because Mrs. Clinton “is not a repre-

sentative of the [White House] client under Upjohn.” The district court

correctly rejected that conclusion, see Pet. App. 70a-72a, and the court

of appeals did not disagree with that aspect of the district court’s deci-

sion.

20

garding matters that have—or that may come to have—

some relevance in an independent counsel investigation

(and parallel congressional inquiries). The United States

has compelling interests in investigating and prosecuting

crimes—inside or outside the government—and the Jus-

tice Department’s performance of those tasks is aided by

the duty of the President and other government officials

to report evidence of criminal violations to the Attorney

General. At the same time, the Constitution requires the

President 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 those responsibilities, the Presi-

dent must have access to legal advice that is frank, fully

informed, and confidential.

The court of appeals’ categorical holding will have the

practical effect of diminishing the ability of the President

and Executive Branch agencies to obtain such advice, for

it denies any protection for attorney work product and

attorney-client communications that may be swept within

the broad ambit of a grand jury subpoena in this or a fu-

ture independent counsel investigation. Because a grand

jury “can investigate merely on suspicion that the law is

being violated, or even just because it wants assurance

that it is not,” United States v. Morton Sait Co., 338

U.S. 682, 642-643 (1950), the court of appeals’ decision

threatens to have a significant chilling effect for counsel

and officials in the White House and federal agencies,

who would be required to operate under an ever-present

potential for unrestrained examination into and disclo-

sure of their ongoing attorney-client communications.

That consequence is not necessary for effective criminal

law enforcement. Such an impairment of the President’s

ability to obtain confidential legal advice—and to provide

for the availability of legal advice for the Cabinet Officers

on whom he relies in executing the laws—should not be

left unreviewed.

; 21

j

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

SETH P. WAXMAN

Acting Solicitor General’

FRANK W. HUNGER

Assistant Attorney General

JOHN C. KEENEY

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

MICHAEL R. DREEBEN

Deputy Solicitors General

JAMES A. FELDMAN

Assistant to the Solicitor

General

JUNE 1997

Acting Solicitor General Walter Dellinger has recused himself in

this case.

aT ei ed wae ae! so tre aril