Judge's ruling on compelling Lindsey to testify -- Part II

3. The Scope of the Governmental Attorney-Client Privilege
Although the Court finds that a governmental attorney-client privilege should apply in the federal grand jury context, the Court is not willing to recognize an absolute privilege. Even though this privilege is absolute in civil cases, such as FOIA cases, this Court finds FOIA cases to be distinguishable from federal grand jury matters because the former involve civil litigation between the federal government and private parties seeking information from the government, whereas the latter involve criminal matters in which a government party seeks information from another government agency. In re Grand Jury Subpoena, 112 F.3d at 918-19. The Court agrees with the Eighth Circuit that the criminal/civil distinction is significant and that "[m]ore particularized rules may be necessary where one agency of government claims the privilege in resisting a demand for information by another." Id. at 916 (quoting Restatement (Third) of the Law Governing Lawyers Section 124 cmt. b). In the context of a federal grand jury investigation where one government agency needs information from another to determine if a crime has been committed, the Court finds that the governmental attorney-client privilege must be qualified in order to balance the needs of the criminal justice system against the government agency's need for confidential legal advice.
The Supreme Court's reasons for recognizing a qualified and not absolute executive privilege in Nixon support this Court's conclusion that a qualified governmental attorney-client privilege should apply in the federal grand jury context. In Nixon, President Nixon claimed an absolute executive privilege in response to a trial subpoena for tapes and documents regarding his conversations with his staff and aides. 418 U.S. at 688-89. The Supreme Court held that only a qualified executive privilege should exist in a criminal trial context. Id. at 711-12 n.19. This Court agrees with the Supreme Court that "[t]he impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III." Id. at 707. Although the D.C. Circuit recognizes an absolute government attorney-client privilege in FOIA cases and in other civil cases in which a government attorney represents a government agency or employee, the Court finds that this absolute privilege should not be "expansively construed" to apply to a federal grand jury investigation for such a privilege would clearly be "in derogation of the search for the truth." Id. at 710. The Court believes that a qualified governmental attorney-client privilege will permit federal grand juries to search for the truth about alleged crimes while simultaneously protecting the need of the White House for confidential legal communications.
The White House claims that candid legal advice will be chilled if the Court does not recognize an absolute governmental attorney-client privilege in the federal grand jury context. Similar arguments were rejected by the Supreme Court with respect to the assertions of executive privilege by President Nixon and with respect to a privilege asserted by state legislators comparable to that of members of Congress. Like the Supreme Court, this Court "cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution." Nixon, 418 U.S. at 712. The argument is also unpersuasive for reasons articulated by the Eighth Circuit:

Because agencies and entities of the government are not themselves subject to criminal liability, a government attorney is free to discuss anything with a government official -- except for potential criminal wrongdoing by that official -- without fearing later revelation of the conversation. An official who fears he or she may have violated the criminal law and wishes to speak with an attorney in confidence should speak with a private attorney, not a government attorney.

In re Grand Jury Subpoena, 112 F.3d at 921. Only a qualified governmental attorney-client privilege in the grand jury context can balance the President's need for frank legal advice against the grand jury's need for relevant evidence of criminal conduct.
Since the Nixon decision in 1974, the White House has operated effectively under a qualified executive privilege. The President continues to receive candid political advice from his top aides and the Court has no doubt that the President will continue to receive sound legal advice from White House attorneys under a qualified governmental attorney-client privilege. The Court shares the belief of the D.C. Circuit that:

So long as the presumption that the public interest favors confidentiality can be defeated only by a strong showing of need by another institution of government -- a showing that the responsibilities of that institution cannot responsibly be fulfilled without access to records of the President's deliberations -- we believe in Nixon v. Sirica and continue to believe, that the effective functioning of the presidential office will not be impaired.

Senate Select, 498 F.2d at 730. The Court is confident that "the President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases." Nixon, 418 U.S. at 713.
The Court's decision to make the attorney-client privilege qualified like the executive privilege not only respects the needs of the criminal justice system, but also saves courts from having to apply two different privilege standards to conversations commingling political and legal advice to the President. Many of the President's top advisers, such as Lindsey, provide both legal and political advice to the President and White House discussions often involve a mixture of the two. If no privilege applied to legal advice in the White House, as the OIC would have it, White House attorneys might be tempted to characterize their advice as political to acquire the qualified protection of the executive privilege. Similarly, if an absolute privilege applied to legal advice to the President while only a qualified executive privilege applied to political advice, the President and his staff might be tempted to characterize confidential political communications as legal in order to obtain greater protection. The Court finds that an absolute governmental attorney-client privilege would overly complicate communications to the President for both White House employees and the federal courts, that it would unduly frustrate the work of federal grand juries, and that it is not necessary to ensure candid legal advice to the President.
The White House argues that the attorney-client privilege has always been an absolute privilege and that it should not be qualified in the federal grand jury context. Although it is true that a private party may invoke an absolute attorney-client privilege in both civil and criminal matters, including federal grand jury investigations, the Court finds that the differences between private and governmental organizations noted by the Eighth Circuit provide compelling reasons for qualifying the governmental attorney-client privilege in the context of a federal grand jury investigation. See In re Grand Jury Subpoena, 112 F.3d at 920. While the Eighth Circuit majority found these differences provided sufficient grounds for not recognizing any governmental attorney-client privilege in the federal grand jury context, this Court finds the differences support qualifying the privilege so that it may be overcome when a federal grand jury can show sufficient need for otherwise privileged material.
A private organization such as a corporation and a government institution such as the White House differ significantly, especially in the criminal context. First, the Eighth Circuit pointed out, the conduct of White House personnel cannot subject the White House as a legal entity to criminal liability. Id. The alleged conduct of Ms. Lewinsky and President Clinton may subject them to criminal prosecution or impeachment respectively, but their conduct cannot implicate the White House in any criminal or civil litigation. As the Eighth Circuit pointed out there is a difference between "official misconduct" and "misconduct by officials" and it is clear that "[t]he OIC's investigation can have no legal, factual, or even strategic effect on the White House as an institution." Id. at 923. The conduct of corporate employees, however, can expose a corporation to civil and criminal liability. Id. For this reason, corporate attorneys need an absolute privilege so that they can obtain candid information from corporate employees and provide competent legal advice to the corporation, as the Supreme Court fully recognized in Upjohn, 449 U.S. 383, 389-90 (1981). Given that no liability threatens the White House, its attorneys do not have as compelling a need to obtain full and candid information from the President regarding an investigation of his alleged private misconduct and thus do not need the protection of an absolute attorney-client privilege as much as private corporations do.
In fact, White House attorneys, like all other executive branch employees, have a statutory duty to report any criminal misconduct by other employees to the Attorney General. See 28 U.S.C. Section 535(b); In re Grand Jury Subpoena, 112 F.3d at 920. Unlike a private attorney representing a corporation, when a White House attorney learns that a White House employee has engaged in criminal conduct, he must report such conduct. A private attorney is under no such obligation unless the conduct poses a threat of death, substantial bodily harm, or bribery of witnesses, jurors, or court officials. See D.C. Rules of Professional Conduct, Rule 1.6(c); Model Rules of Professional Conduct, Rule 1.6(b). The Eighth Circuit refused to recognized a governmental attorney-client privilege in the context of a federal grand jury investigation in part because such a privilege would conflict directly with the duty established by section 535(b). In re Grand Jury Subpoena, 112 F.3d at 920. The White House challenges the Eighth Circuit's reasoning, arguing that section 535(b) and memoranda interpreting it from the Justice Department's Office of Legal Counsel 14 show no congressional intent to vitiate the attorney-client privilege. The Attorney General's amicus brief also asserts that section 535(b) must be interpreted consistently with the governmental attorney-client privilege. See Attorney General Amicus Brief at 11.
Nothing in the language of the statute or its legislative history suggests a congressional intent either to vitiate the privilege or to exempt governmental attorneys from the duty to report. In re Grand Jury Subpoena, 112 F.3d at 932 (noting "the absence of any discussion of the subject in the legislative history")(citation omitted). The Court acknowledges that the Justice Department has interpreted the section consistently with a governmental attorney-client privilege outside of the grand jury context. Accordingly, the Court finds that section 535(b) neither precludes nor requires the recognition of a governmental attorney-client privilege in the federal grand jury context. Rather, the Court finds that section 535(b)'s duty to report criminal activity provides further support for the Court's conclusion that the governmental attorney-client privilege should be qualified in the context of a federal grand jury investigation of an official's alleged misconduct. Under a qualified privilege, government attorneys would be required to report privileged information regarding possible criminal activity, as section 535(b) requires, when a federal grand jury could demonstrate sufficient need for such information.
The Court's decision to qualify the government attorney-client privilege in the context of a federal grand jury investigation is also supported by the fact that White House attorneys, unlike private attorneys, work for the American public. As the Eighth Circuit pointed out, "the general duty to public service calls upon government employees and agencies to favor disclosure over concealment." I.d. at 920. The Supreme Court has found that the public responsibilities of accountants weighed against giving them work product immunity, see United States v. Arthur Young & Co., 465 U.S. 805, 817 (1984), and in refusing to recognize a governmental attorney-client privilege for White House attorneys, the Eighth Circuit recognized that White House attorneys bear far greater public responsibilities than private accountants. In re Grand Jury Subpoena, 112 F.3d at 921. This Court finds that the public responsibilities of White House attorneys weigh in favor of requiring them to divulge otherwise privileged information when a federal grand jury needs such information to determine whether a crime has been committed. The Court believes that "the strong public interest in honest government and in exposing wrongdoing by public officials would be ill-served by recognition of a[n] [absolute] governmental attorney-client privilege in criminal proceedings inquiring into the actions of public officials." Id.
The Court shares the Eighth Circuit's belief that " to allow any part of the federal government to use its in-house attorneys as a shield against the production of information relevant to a federal criminal investigation would represent a gross misuse of public assets." Id. This is especially true given the large number of attorneys working for the federal government. See id. (recognizing the "pernicious potential of [a government attorney-client privilege] in a government top-heavy with lawyers")(citation omitted). White House attorneys are paid by U.S. taxpayers to provide legal advice on official presidential decisions, not the private decisions of President Clinton, and certainly not private, potentially criminal conduct. Members if the White House Counsel's office are not, and should not be, representing President Clinton in the grand jury investigation regarding Monica Lewinsky; the President's private attorneys have been hired to do this. The Eighth Circuit made this clear to the White House when it refused to recognize a government attorney-client privilege under very similar circumstances. Id. at 915. Since the issuance of the Eighth Circuit opinion in February 1997, the White House has been on notice that legal communications between the President and White House attorneys regarding grand jury investigations of the President or the First Lady's alleged private misconduct are not guaranteed absolute protection. Thus, if President Clinton had legal communications with White House attorneys regarding the grand jury investigation of the Monica Lewinsky matter, just as Hillary Clinton did in the Whitewater grand jury investigation, he did so "at [his] peril" because both the majority and the dissent of the Eighth Circuit opinion made clear that such consultations would no longer be absolutely protected. Id. at 927 (Kopf, J., dissenting).

4. The Standard of Need
For all of the above reasons, the Court holds that the government attorney-client privilege is qualified in the context of a federal grand jury investigation and that, like the executive privilege, it can be overcome by a showing of need. This Court must determine what type of showing must be made to justify release to a federal grand jury of materials protected by the governmental attorney-client privilege. In the Espy case, the D.C. Circuit addressed the same question with respect to the White House's assertion of the executive privilege in response to a federal grand jury subpoena. In re Sealed Case, 121 F.3d at 742. As the Court discussed earlier, the D.C. Circuit held that, in order to overcome the presumption of executive privilege, the OIC must show two factors: "first, that each discrete group of the subpoenaed materials likely contains important evidence; and second that this evidence is not available with due diligence elsewhere." Id. at 754. The Court finds that the need analysis established by the D.C. Circuit in the Espy case for assertions of the executive privilege in response to a federal grand jury subpoena should also apply to assertions of the governmental attorney-client privilege in response to a federal grand jury subpoena. The need analysis in the Espy case is more relevant and appropriate than the need analysis established by the Supreme Court for trial subpoenas in Nixon and property weighs the President's need for confidential legal advice against the grand jury's need for relevant and otherwise unavailable evidence. Id. at 755-57. Although the Espy case involved the executive privilege, the Court finds that its two-prong need analysis should apply to the government attorney-client privilege for many of the same reasons articulated above in support of the Court's decision to make the governmental attorney-client privilege qualified like the executive privilege in the context of a federal grand jury investigation. The President's need for candid legal advice from the White House Counsel's Office and his need for frank political advice from his top advisers are comparable needs that require some degree of confidentiality. The grand jury's need for relevant evidence of crimes applies equally whether the executive privilege or the governmental attorney-client privilege has been asserted. Thus, the competing needs in both cases are similar and the need analysis established by the D.C. Circuit in the Espy case provides a thoughtful balance of these needs. By requiring the Special Prosecutor to show that "each discrete group of the subpoenaed materials [or testimony] likely contains important evidence," the first prong of the need analysis ensures "that the evidence sought must be directly relevant to issues that are expected to be central to the trial." Id. at 754. This prevents the prosecutor from engaging in a fishing expedition and assures the President and White House attorneys that their conversations will be protected unless they directly relate to a central matter of a criminal investigation. The second prong, which requires the prosecutor to show that the subpoenaed evidence "is not available with due diligence elsewhere," provides further protection for the President's need for confidential legal advice. Id.
As the Court noted earlier, applying the same need analysis to the White House's assertions of both the executive privilege and the government attorney-client privilege has the added benefit of sparing federal courts from having to apply two different legal standards to conversations combining political and legal advice to the President and removes the incentive to characterize one form of advice as the other in order to obtain greater privilege protection. This is especially important in the White House context because advisers such as Lindsey regularly provide both forms of advice within a single conversation. The Court also notes that "[t]he factors of importance and unavailability are also used by courts in determining whether a sufficient showing of need has been demonstrated to overcome other qualified executive privileges, such as the deliberative process privilege or the law-enforcement investigatory privilege." Id. at 755 (citing In re Comptroller of the Currency, 967 F.2d 630, 634 (D.C. Cir. 1992); Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1342 (D.C. Cir. 1984)). The Court finds no support for devising a different balancing test of the competing needs of the grand jury and the White House, especially given the similarities between the Espy case and the case at hand.
For all of the reasons articulated above, the Court holds that although an absolute governmental attorney-client privilege applies to civil cases in which government attorneys represent government agencies or government employees, only a qualified governmental attorney-client privilege applies to a subpoena issues by a federal grand jury. The Court further holds that this privilege can be overcome if the subpoena proponent can show "first, that each discrete group of the subpoenaed materials [or testimony] likely contains important evidence; and second that this evidence is not available with due diligence elsewhere." Id. at 754. If the Court finds a sufficient showing of need, the Court shall order compliance with the subpoena subject to the relevancy standard established by R. Enterprises, 498 U.S. at 300. See In re Sealed Case, 121 F.3d at 759.

CONTINUED, See Part III

This article was published on Thursday, May 28, 1998

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