RETURN to Clinton Crisis
Judge's ruling on compelling Lindsey to testify
(First of three parts)
Full text of the opinion issued May 26 by U.S. District Court Chief Judge Norma Holloway Johnson:FOR THE DISTRICT OF COLUMBIA
IN RE GRAND JURY PROCEEDINGS
Misc. Action Nos. 98-095,
98-096 & 98-097 (NHJ)
REDACTED VERSION
With respect to the remaining witnesses, the Court will first address their mutual claim of executive privilege. (REDACTED) Lastly, the Court will consider Lindsey's claim of governmental attorney-client privilege and work product protection.
I. Analysis
A. Executive Privilege
The OIC has moved to compel the testimony of Lindsey and Blumenthal, two of President Clinton's senior advisors. The President has asserted that the executive privilege, also known as the presidential communications privilege, protects conversations involving himself, Lindsey and Blumenthal, and top White House aides. The presidential communications privilege is a governmental privilege intended to promote candid communications between the President and his advisors concerning the exercise of his Article II duties.
United States v. Nixon, 418 U.S. 683, 705, 708, 711 (1974); In re Sealed Case, 121 F.3d 729, 744 (D.C. Cir. 1997) (the "Espy case"). This Circuit has recognized a "great public interest" in preserving "the confidentiality of conversations that take place in the President's performance of his official duties" because such confidentiality is necessary in order to protect "the effectiveness of the executive decision-making process." Nixon v. Sirica, 487 F.2d 700, 717 (D.C. Cir. 1973); In re Sealed Case, 121 F.3d at 742.
Courts have recognized that the President "occupies a unique position in the constitutional scheme," Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982) and that "(I)n no case of this kind would a court be required to proceed against the president as against an ordinary individual." Nixon, 418 U.S. at 708 (quoting United States v. Burr, 25 F.Cas. 187, 192 (No. 14, 694) (C.C.D.Va. 1807)
1. The Presumption of Privilege
The White House argues that the communications of Lindsey and Blumenthal are presumptively privileged because President Clinton has invoked executive privilege. The OIC counters that the communications are not privileged because the executive privilege applies only to communications regarding official presidential matters and the federal grand jury investigation regarding Monica Lewinsky and the Paula Jones litigation are private matters. In light of the holdings of the United States Supreme Court and the Court of Appeals for the District of Columbia Circuit, this Court finds that it has a duty to treat the subpoenaed testimony of Lindsey and Blumenthal as presumptively privileged. See Nixon, 418 U.S. at 713; In re Sealed Case, 121 F. 3d at 743.
Prompted by the Watergate investigation, the Supreme Court held that when the President of the United States asserts a claim of executive privilege, the district court has a "duty to . . . treat the subpoenaed material as presumptively privileged. "Nixon, 418 U.S. at 713 (emphasis added). The D.C. Circuit recently reiterated this holding when it considered President Clinton's assertion of the executive privilege in the context of a federal grand jury investigation of Michael Espy, former Secretary of Agriculture. In re Sealed Case, 121 F.3d at 743. The D.C. Circuit wrote: "The President can invoke the privilege when asked to produce documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential. If the President does so, the documents become presumptively privileged." Id. at 744. In the Espy case, the D.C. Circuit treated the executive communications at issue as presumptively privileged just as it had done in earlier cases involving President Nixon's assertions of executive privilege. Id. at 743; see Sirica 487 F.2d at 717; Senate Select Comm. On Presidential Campaign Activities v. Nixon, 498 F.2d 725, 730 (1974) ("Presidential conversations are 'presumptively privileged,' even from the limited intrusion represented by in camera examination of the conversations by a Court.") The presumptive privilege for executive communications "embodies a strong presumption, and not merely a lip-service reference." Dellums v. Powell 561 F.2d 242, 246 (D.C. Cir.) cert. denied, 434 U.S. 880 (1977).
No court has ever declined to treat executive communications as presumptively privileged on the grounds that the matters discussed involved private conduct. In fact, in the Nixon cases, the D.C. Circuit and the Supreme Court treated President Nixon's executive communications with his aides as presumptively privileged even though they involved the President's alleged criminal involvement in a break-in at the Democratic National Committee headquarters and its subsequent cover-up. See Nixon, 418 U.S. at 708; Sirica 487 F.2d at 717; Senate Select, 498 F.2d. at 730. In Senate Select the subpoena explicitly directed President Nixon to give Congress taped conversations between himself and John Dean that "discusse(d) alleged criminal acts occurring in connection with the Presidential election of 1972." 498 F.2d at 727. The D.C. Circuit not only presumed that the conversations were privileged, but also stated that the showing of need required to overcome the presumption "turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, but instead, on the nature and appropriateness of the function in the performance of which the material was sought and the degree to which the material was necessary to its fulfillment." Id. at 730. In other words, the nature of the presidential conduct at issue, whether it was official or private, appeared not to affect the presumption of privilege or the need stage of the D.C. Circuit's executive privilege analysis.
Purely private conversations that did not touch on any aspect of the President's official duties or relate in some manner to presidential decision-making would not properly fall within the executive privilege.
However, the President does need to address personal matters in the context of his official decisions. The position that nothing the President or his advisors could say to each other regarding the grand jury investigation or the Jones litigation would relate to the President's official duties is oversimplified.
Indeed, the Independent Counsel has conceded that certain executive communications, such as those discussing how the President should respond to the Lewinsky matter during Tony Blair's visit, are protected by the executive privilege. 3/20/98 Tr. At 61-62.
At this stage, the Court has no evidence that Lindsey and Blumenthal's conversation's discussing the Lewinsky and Jones matters were not related in some way to official decision-making. To the contrary, the Court has (REDACTED) sworn affidavits asserting that the conversations at issue involved official matters such as possible impeachment proceedings, domestic and foreign policy matters, and assertions of official privileges.2 The Office of the President submitted the affidavits "to establish as a factual matter that the communications in the White House over which executive privilege was being asserted related to official matters and official conduct." 3/20/98 Tr. At 43.
The grand jury transcripts provided to the Court do not indicate that the witnesses refused to answer questions regarding conversations that did not relate to the President's official duties. The Court will not speculate that conversations among the President and his advisors fell outside of the President's Article II responsibilities.
The Court does not have documents or tapes to review in camera that could establish whether the content of the subpoenaed communications relates only to private matters, nor does it know how Lindsey and Blumenthal might answer the grand jury's questions. The Court is aware of only the unanswered questions themselves. Furthermore, unlike the Espy case, the subpoenas here call for testimony, not documents that the Court could review in camera. The Court's ability to assess whether the subpoenaed materials relate to official decisions is thus greatly hindered. This Circuit has stated:
[A]ny court completely in the dark as to what presidential files contain is duty bound to respect "the singularly unique role under Art. II of a President's communications and activities, related to the performance of duties under that Article." For "a President's communications and activities encompass a vastly wider range of sensitive material than would be true of any 'ordinary individual'" and "(I)t is therefore necessary in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice". . .[T}here is a presumption of privilege which can only be overcome by some demonstration of need.
United States v. Haldeman, 559 F.2d 31, 76 (D.C. Cir. 1976) (footnotes omitted), cert. denied sub. Nom Erlichman v. United States, 431 U.S. 933 (1977).
Under Nixon, the Court has a duty to treat the subpoenaed testimony as presumptively privileged. 418 U.S. at 713. In light of this binding precedent, the factual similarities between the Nixon cases and the case at hand, and the evidence submitted with respect to the President's invocation of privilege, this Court finds that it must treat the communications of Lindsey and Blumenthal as presumptively privileged.
2. The Scope of the Privilege
Although the Court must presume that presidential communications are privileged, the scope of the privilege is l limited to "communications authored or solicited and received by those members of an immediate White House adviser's staff who have broad and significant responsibility for investigating and formulating the advice to be given to the President on the "particular matter to which the communications relate." In re Sealed Case, 121 F.3d at 752. In other words, the President does not have to participate personally in the communication in order for it to be privileged.
Citing the presidential communications privilege, Lindsey refused to answer questions before the grand jury regarding a conversation he had with (REDACTED). The White House did not mention (REDACTED) in its brief or at the hearings before this Court, much less argue (REDACTED) is a presidential adviser. At any rate, the White House has not met its burden of showing that (REDACTED) communications with Lindsey "occurred in conjunction with the process of advising the President." Id. Accordingly, the Court finds that any conversations between Lindsey and (REDACTED) are not covered by the executive privilege.
Both Lindsey and Blumenthal refused to answer questions before the grand jury regarding conversations they had with the First Lady, citing executive privilege. [REDACTED] states: "The First Lady functions as a senior advisor to the President and it was in that capacity that I had discussions with her about the Independent Counsel's investigation." (REDACTED) At the hearing on this matter, in response to a question from the Court, the attorney for the White House argued that First Ladies have traditionally held a position of senior advisor to the President and cited Association of American Physicians and Surgeons Inc. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993). The OIC has not contested that Mrs. Clinton would be covered by the executive privilege.
In Association of American Physicians and Surgeons Inc. v. Clinton, the D.C. Circuit faced the question of whether Mrs. Clinton was an "officer of employee of the government" for purposes of the Federal Advisory Committee Act ("FACA"). Id. at 902, Mrs. Clinton chaired the President's Task Force on National Health Care Reform ("Task Force"), which was to advise the President and make recommendations to him. The issue before the D.C. Circuit was whether the Task Force qualified for an exemption from FACA as an advisory group whose members were all officers and employees of the government. Rather than decide the constitutional question of whether the application of FACA would unconstitutionally interfere with the President's duty to "take Care that the Laws be faithfully executed," U.S. Const. Art. II Para. F3, the court decided that Mrs. Clinton was an officer or employee of the government under FACA. 997 F.2d at 911. In the D.C. Circuit's discussion of the constitutional question, the court stated: "This Article II right to confidential communications attaches not only to direct communications with the President, but also to discussions between his senior advisors ... [I]f the President seeks advice from those closest to him, whether in or out of government, the President's spouse, typically, would be regarded as among those closest advisers." Id. at 909-10.
Mrs. Clinton is widely seen as an advisor to the President and "Congress itself has recognized that the President's spouse acts as the functional equivalent of an assistant to the President." Id. at 904 (citing 3 U.S.C. Para.105(e)). The Court finds that conversations between the First Lady and Lindsey or Blumenthal fall under the executive privilege.
3. OIC's Showing of Need
The presumptive executive privilege is not absolute. Sirica, 487 F.2d at 716.
The Court will not accept the President's "mere assertion of privilege as sufficient to overcome the need of the party subpoenaing the [testimony]." Id at 713. The presumption of privilege may be rebutted by a sufficient showing of need by the Independent Counsel. In re Sealed Case, 121 F.3d 729, 754 (D.C. Cir. 1997).
In deciding what showing of need is sufficient to overcome an assertion of the executive privilege, the D.C. Circuit looked to the need analyses established in the cases involving President Nixon and the Watergate investigation. Id. at 753. The court found that these cases "balanced the public interests served by protecting the President's confidentiality in a particular context with those furthered by requiring disclosure." Id. Working from the Supreme Court's rather vague requirement of a "demonstrated, specific need for evidence," Nixon, 418 U.S. at 713, the D.C. Circuit concluded that in order to overcome an assertion of executive privilege, the OIC must show "first, that each discrete group of the subpoenaed materials likely contains important evidence; and second that the evidence is not available with due diligence elsewhere." In re Sealed Case, 121 F.3d at 754. These elements must be shown "with specificity." Id. at 756. The information sought need not be "critical to an accurate judicial determination." Id at 754.
The first requirement means that the evidence being sought must be "directly relevant to the issues that are expected to be central to the trial." Id. The D.C. Circuit noted that this requirement will not typically have much impact because Federal Rule of Criminal Procedure 17(c) already limits a subpoena to relevant information. With respect to the second requirement, the party seeking to overcome the privilege should first attempt to determine whether sufficient evidence could be obtained elsewhere. Id at 755. The issuer of the subpoena "should be prepared to detail these efforts and explain why evidence covered by the presidential privilege is still needed." Id. The Court of Appeals has noted:
there will be instances where such privileged evidence will be particularly useful, as when, unlike the situation here, an immediate White House advisor is being investigated for criminal behavior. In such situations, the subpoena proponent will be able easily to explain why there is no equivalent to evidence likely contained in the subpoenaed materials.Id. The court also foresaw that "a grand jury will often be able to specify its need for withheld evidence in reasonable detail based on information obtained from other sources." Id. at 757. Finally, if the grand jury finds it difficult to obtain evidence from other sources, "this fact in and of itself will far toward satisfying the need requirement," Id.
If a "demonstrated, specific need," is shown, then the subpoenaed testimony shall be given to the grand jury unless there is "no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation." United States v. R. Enterprises, 498 U.S. 292, 300 (1991). "The Question of what evidence might reasonably be relevant to the grand jury's investigation should be answered by reference to the reasons the grand jury gave in explaining its need for the subpoenaed materials." In re Sealed Case, 121 F.3d at 759.
The Court ordered the OIC to make a showing of need and the OIC made an extensive ex parte submission to the Court on that subject, which the Court has reviewed in camera. The submission surveys a substantial portion of the evidence gathered by the grand jury during the OIC's investigation to provide background for the OIC's explanation of why certain inquiries must be directed to the White House and the President's closest advisers. The OIC attaches portions of the grand jury testimony of Lindsey and Blumenthal that highlight the questions they declined to answer on the basis of executive privilege.
In general, Lindsey declined to answer questions relating to [REDACTED]. He also declined to discuss [REDACTED]. Blumenthal declined to answer questions relating to [REDACTED]. The submission delineates nineteen categories of information it seeks from Blumenthal and describes how each category meets the In re Sealed Case need standard.
Because the Court has reviewed the documents in camera, and most, if not all, of those documents are protected by Federal Rule of Criminal Procedure 6(e)(2), its finding of need cannot be detailed. See id, at 740. The Court cannot describe the categories of evidence needed in any more detail than it has already because doing so would reveal "matters occurring before the grand jury." See Federal Rule of Civil Procedure 6(e)(2). The Court finds that the categories of testimony sought by the OIC from Lindsey and Blumenthal are all likely to contain relevant evidence that is important to the grand jury's investigation. In re Sealed Case, 121 F.3d at 754. The OIC has been authorized to investigate whether Monica Lewinsky "or others," including President Clinton, suborned perjury, obstructed justice, or tampered with witnesses. Order of the Special Division, Jan. 16, 1998. The testimony sought and withheld based on executive privilege is likely to shed light on that inquiry, whether exculpatory. In re Sealed Case, 121 F.3d at 754.
In addition, [REDACTED]. If there were instructions from the President to obstruct justice or efforts to suborn perjury, such actions likely took the form of conversations involving the President's closest advisors, including Lindsey and Blumenthal. Additionally, if the President disclosed to a senior adviser that he committed perjury, suborned perjury, or obstructed justice, such a disclosure is not only unlikely to be recorded on paper, but it also would constitute some of the most relevant and important evidence to the grand jury investigation. The D.C. Circuit noted that if a crime being investigated by the grand jury relates to "the content of certain conversations," then the grand jury's need for the exact text of those conversations is "undeniable." Id, at 761 (quoting Senate Select, 498 U.S. at 732) (emphasis added).
The Court also finds that the OIC has met its burden of showing with specificity that the evidence is not available with due diligence elsewhere. See id, at 754. The OIC seeks testimony regarding conversations that took place within the White House and the only sources of that testimony are those persons participating in the conversations. Further, the OIC presented the Court with detailed information about its unsuccessful efforts to obtain this evidence through other sources. The OIC has diligently pursued other alternatives where feasible. [REDACTED]
In sum, the OIC has provided a substantial factual showing to demonstrate its "specific need" for the testimony. Nixon, 418 U.S. at 713. The Court finds that the evidence covered by the presumptive privilege remains necessary to the grand jury and cannot feasibly be obtained elsewhere. The Court will grant the OIC's motions to compel the testimony of Lindsey and Blumenthal insofar as they have asserted executive privilege.
B. [REDACTED]
C. Official Attorney-Client Privilege and Work Product Protection
Lindsey has asserted an absolute governmental attorney-client privilege in response to grand jury questions concerning his communications with the President, members of the White House Counsel's Office, grand jury witnesses or their attorneys, and the President's personal attorneys. The attorney-client privilege protects communications from clients to their attorneys that were intended to be confidential and were made for the purpose of obtaining legal advice. See Tax Analysts, 117 F.3d at 618. Communications from attorneys to their clients area also protected if the communications "rest on confidential information obtained from the client." Id. (citation omitted). Lindsey claims to have performed legal services as Deputy Counsel to the President for his client, the Office of the President. He has "advis[ed] the Office of the President on whether the President should assert his official privileges to protect the communications at issue here from compelled disclosure, and gather[ed] the facts needed to reach a recommendation on that question." White House's Mem. Concerning President Clinton's Suppl. Filing in Support of Opp. to Mot. to Compel Testimony of Bruce Lindsey at 2. In addition, Lindsey has gathered information including talking to grand jury witnesses or their attorneys in order to provide legal advice to the office of the President with respect to potential impeachment proceedings.
Lindsey also asserts an absolute governmental attorney-client privilege with respect to advice he rendered to the Office of the President on "how best to prevent other litigation in which the President is involved from hampering the Presidency's fulfillment of its institutional duties." Id. To the Court's knowledge, the only "other litigation in which the President is involved" is the Paula Jones suit. Additionally, Lindsey asserts the governmental privilege with respect to his communications with the President's personal attorneys pursuant to the common interest doctrine. He claims that the Office of the President and the President as an individual share certain common interests that permitted confidential communications between the Office of the White House Counsel and the President's personal attorneys. Lastly, Lindsey has asserted the governmental work product doctrine in response to questions regarding his interviews with grand jury witnesses and their counsel.
1. The Attorney-Client Privilege in the Federal Grand Jury Context
The White House asks the Court to recognize an absolute governmental attorney-client privilege in the context of a federal grand jury investigation of an official's alleged private misconduct. The OIC argues that no such privilege should exist in this context.
The Court begins by noting that privileges "are not lightly created nor expansively construed, for they are in derogation of the search for truth." Nixon, 418 U.S. at 710. Privileges should be recognized "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Trammel v. United States, 445 U.S. 40, 50 (1980) (citations omitted). When deciding whether to recognize asserted privileges, courts are instructed by Federal Rule of Evidence 501 to interpret the common law privileges "in the light of reason and experience." Pursuant to Rule 501, this Court must determine whether the asserted privilege has any history of being applied under the circumstances here, and if not, whether applying such a privilege would serve some important public interest.
Only two Courts of Appeal have addressed the issue of whether a governmental attorney-client privilege can be asserted in response to a federal grand jury subpoena. The Sixth Circuit explained that it has assumed that a governmental attorney-client privilege exists but has "never explicitly so decided." Reed v. Baxter, 134 F.2d 135 (6th Cir. 1989). Neither Sixth Circuit case decided that a governmental attorney-client privilege exists and neither case involved an investigation of a government official's private conduct; both cases challenged official government conduct.
The Eighth Circuit case, by contrast, did involve a federal grand jury investigation of a government official's private conduct and is the only Court of Appeals case that has actually decided whether a governmental attorney-client privilege should exist in the federal grand jury setting. In re Grand Jury Subpoena, 112 F.3d 910 (8th Cir.), cert. denied, 117 S. Ct. 2482. That case involved a federal grand jury investigation of the private conduct of President and Hillary Clinton in what is known as the Whitewater matter. See id, at 913. The White House received a grand jury subpoena seeking "'[a]ll documents created during meetings attended by any attorney from the Office of Counsel to the President and Hillary Rodham Clinton (regardless of whether any other person was present)' pertaining to several Whitewater-related subjects." Id. The White House refused to produce two sets of notes responsive to the subpoena, asserting a governmental attorney-client privilege. Id. at 914. Both sets of notes were taken during meetings attended by White House attorneys, Mrs. Clinton, and her personal attorneys. Id.
The Eighth Circuit required production of both sets of notes, concluding that even if a governmental attorney-client privilege exists in other contexts, "the White House may not use the privilege to withhold potentially relevant information from a federal grand jury." Id. at 915. Pursuant to Federal Rule of Evidence 501, the court applied the federal common law of attorney-client to the facts and found that no governmental attorney-client privilege exists in the context of a federal criminal investigation. Id. The Eighth Circuit was not persuaded that Proposed Federal Rule of Evidence 503, which defines "client" to include public officers or public organizations, or the few cases involving a governmental attorney-client privilege in fact established such a privilege in the grand jury context. Id. at 916-17. As a result, the Eighth Circuit "turned to general principles" about privileges and the grand jury and decided not to recognize such a privilege. Id. at 918, 919-21.
The majority rejected the dissent's decision to recognize a qualified governmental attorney-client privilege that would be subject to the Nixon balancing test regarding executive privilege, concluding that no governmental attorney-client privilege, not even a qualified one, should exist in the federal grand jury context. In re Grand Jury Subpoena, 112 F.3d at 919. Under the Nixon test, the grand jury's need for the subpoenaed material is balanced against the White House's need for confidentiality. 418 U.S. at 712-13. Executive communications, which the Court discussed earlier, are presumed privilege unless the proponent of the subpoena can overcome the presumption with a sufficient showing of specific need for the privileged material. Id. at 713. The dissenting judge in the Eighth Circuit case thought this analysis should apply to the governmental attorney-client privilege to ensure that the President receives candid, confidential legal advice that will be disclosed only if a federal grand jury truly needs it. In re Grand Jury Subpoena, 112 F.3d at 926-27. The majority did not find Nixon to be "directly controlling" as it addressed a different privilege, but did find the case "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." Id. at 919.
2. Applicability of the Governmental Attorney-Client Privilege
In seeking to compel Lindsey to testify, the OIC asks the Court to follow the majority opinion in the Eighth Circuit case and find that no attorney-client privilege exists in the federal grand jury context. The White House urges this Court not to follow the Eighth Circuit case, insisting that the majority's reasoning is flawed and that the D.C. Circuit clearly recognizes an absolute governmental attorney-client privilege and that it should therefore apply equally to civil and criminal matters regardless of whether a private or government party asserts the privilege. The amicus brief of the Attorney General asks the Court to recognize a qualified privilege that would "balance the demands of criminal law enforcement against the asserted need for confidentiality [by the White House]." Brief Amicus Curiae for the United States, Acting Through the Attorney General at 7-8 ("Attorney General Amicus Brief"). While the Attorney General does not request a specific balancing test, she does suggest a standard of need similar to the one established in Nixon. See Brief Amicus Curiae for the United States, Acting Through the Attorney General, Supporting Certiorari, in In re Grand Jury Subpoena, 112 F.3d 910 (8th Cir. 1997), at 15.
In this Circuit, an absolute governmental attorney-client privilege does apply to FOIA cases and other civil cases in which government attorneys represent government agencies or employees against private litigants in matters involving official government conduct. D.C. Circuit FOIA cases, Proposed Rule of Evidence 503, and the D.C. Bar's Rule of Professional Conduct all recognize such a privilege. In light of these authorities and the President's need for confidential legal advice, see Nixon, 418 U.S. at 708, the Court concludes that a governmental attorney-client privilege does apply in the federal grand jury context. In Nixon, the Supreme Court found that President Nixon's need for confidential advice from his advisers supported the existence of an executive privilege, acknowledging that "[a] President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately." Id. This Court finds the President's need for confidential legal advice from the White House Counsel's Office to be as legitimate for his need for confidential political advice from his top advisers. This compelling need supports recognition of a government attorney-client privilege even in the context of a federal grand jury subpoena.
CONTINUED, See Part II
This article was published on Thursday, May 28, 1998
RETURN to Clinton CrisisCopyright 1998, Little Rock Newspapers, Inc. All rights reserved.
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