158 F.3d 1263 (D.C. Cir. 1998)
On January 16, 1998, at the request of the Attorney General, the Division for the Purpose of Appointing Independent Counsels expanded Independent Counsel Kenneth W. Starr's jurisdiction to investigate whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law in connection with the civil lawsuit filed by Paula Jones against President Clinton.1 Thereafter a grand jury in the District of Columbia began receiving evidence about Lewinsky and President Clinton.2
On January 30, 1998, the grand jury issued a subpoena to Bruce R. Lindsey, an attorney admitted to practice in Arkansas who holds the positions of Deputy White House Counsel and Assistant to the President.3 Lindsey appeared before the grand jury on February 18, February 19, and March 12, 1998. He declined to answer questions about his communications with the President as Deputy White House Counsel, as well as by executive privilege, and by the President's personal attorney-client privilege. He also claimed work product protections related to those privileges.4
On March 6, 1998, the Independent Counsel moved to compel Lindsey's testimony. The district court granted the motion on May 4, 1998.5 The court rejected the executive privilege claim in light of the Independent Counsel's showing of need and unavailability.6 It ruled that any government attorney-client privilege was qualified in the grand jury context and could be overcome upon a sufficient showing of need for the communications and their unavailability from other sources.7 The court also held the President's personal attorney-client privilege and work product immunity inapplicable to Lindsey's testimony.8
Both the Office of the President and the President in his personal capacity appealed the order granting the motion to compel. The Independent Counsel petitioned the Supreme Court to review the district court's decision before judgment by the court of appeals. On June 4, 1998, the Supreme Court denied certiorari while indicating its expectation that the Court of Appeals would proceed expeditiously.9 Following an expedited briefing schedule, the court of appeals heard argument on June 29, 1998. Neither the Office of the President nor the President in his personal capacity appealed the district court's ruling on executive privilege.10
Whether an attorney in the Office of the President may refuse to answer questions before a federal grand jury about possible criminal conduct by government officials on the basis of a government attorney-client privilege?11
Under Rule 501 of the Federal Rules of Evidence, privileges are governed by the common law as interpreted by federal courts in light of reason and experience.12 Although a government attorney-client privilege is recognized in contexts such as FOIA exemption five, it does not extend to shielding communications about possible federal criminal offenses from a federal grand jury.13 Government attorneys owe paramount duties to the public, the faithful execution of the laws under Article II, and the tradition of reporting evidence of crimes under 28 U.S.C. § 535(b) and longstanding practice.14
No. Lindsey serves as Deputy White House Counsel and Assistant to the President and appeared before the grand jury investigating possible crimes arising from the expanded jurisdiction over the Lewinsky and Jones matters.15 Reason and experience, reinforced by the constitutional duty to take care that the laws be faithfully executed and by the public interest in honest government, require that government lawyers provide such evidence to the grand jury rather than withhold it under an absolute privilege.16 The Office of the President has itself acknowledged the duty to report evidence of crimes even when otherwise protected by attorney-client privilege.17
An attorney in the Office of the President may not refuse to answer such questions on the basis of government attorney-client privilege.18
Related opinions on this issue
Tatel dissents from the abrogation of the presidential attorney-client privilege.19 He argues that the privilege protects official legal advice given by White House counsel to a sitting President.20 Carving out an exception for grand jury subpoenas will chill candid communications.21
This may cause Presidents to rely exclusively on private counsel.22 Tatel contends that neither reason nor experience justifies treating White House counsel differently from other government lawyers who retain a reduced but extant privilege.23 He believes the court should have remanded for a determination whether Lindsey's communications actually constituted legal advice before reaching the broad constitutional question.24
Whether the President's personal attorney-client privilege protects communications with White House counsel when that counsel acts as an intermediary between the President and his private counsel?25
The President's personal attorney-client privilege extends to communications made through an agent.26 The use of the intermediary must be reasonably necessary given the client's circumstances.27 The agent must act merely to transmit information without injecting independent legal advice or strategy.28
Yes. The President faces unique scheduling and security constraints that make direct communication with private counsel impractical at times.29 This renders Lindsey's role as intermediary reasonably necessary under the circumstances of the office.30 When Lindsey merely relayed questions and answers between the President and private counsel without adding his own legal analysis, those communications fall within the personal privilege.31
The district court erred by requiring a greater showing of necessity and by overlooking that most of Lindsey's assistance occurred in this transmitting capacity.32
The President's personal attorney-client privilege protects communications with White House counsel when that counsel acts as a mere intermediary between the President and his private counsel.33
Whether the common interest doctrine allows the President to assert his personal attorney-client privilege over communications between White House counsel and his private counsel?34
The common interest doctrine preserves attorney-client and work product privileges when disclosure occurs to a third-party lawyer whose client shares an overlapping legal interest.35 The doctrine does not apply when the third-party lawyer is a government official whose overriding public duties prevent assertion of an absolute privilege against a federal grand jury.36
No. The President in his personal capacity and the Office of the President share institutional interests such as the defense of the Office of the President against impeachment. Nevertheless, Lindsey functions in his official capacity as Deputy White House Counsel when participating in such conferences.37 His duty not to withhold evidence of possible criminal misconduct from the grand jury remains unchanged whether he receives the information directly from the President or through private counsel.38 The common interest doctrine therefore cannot shield the communications from grand jury inquiry.39
The common interest doctrine does not allow the President to assert his personal attorney-client privilege over communications between White House counsel and his private counsel in the face of a grand jury subpoena.40
Related opinions on this issue
Tatel would recognize an official attorney-client privilege for the Presidency that protects communications between White House counsel and the President.41 Because he would uphold that privilege against grand jury subpoenas, he concludes that the common interest doctrine extends protection to joint consultations between White House counsel and the President's private counsel whenever the attorneys share an overlapping common interest, including institutional concerns such as impeachment defense.42 This approach diverges sharply from the majority by emphasizing the unique need for confidential legal advice in the Presidency and by rejecting any automatic subordination of the privilege to the grand jury's investigative demands.43
Tatel maintains that the majority's ruling will chill candid communications and ultimately force Presidents to rely solely on private counsel.44