121 F.3d 729 (D.C. Cir. 1997), 96-3124, In re Sealed Case

Docket Nº:96-3124.
Citation:121 F.3d 729
Party Name:In re SEALED CASE.
Case Date:June 17, 1997
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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121 F.3d 729 (D.C. Cir. 1997)


No. 96-3124.

United States Court of Appeals, District of Columbia Circuit.

June 17, 1997

Argued Feb. 20, 1997.

Ordered Published in Unredacted Form Aug. 29, 1997.

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August 29, 1997

Per Curiam.

In light of the recent indictment of former Secretary of Agriculture, Mike Espy, it is no longer necessary to maintain under seal any portion of the Court's opinion issued on June 17, 1997. It is, therefore, ORDERED, on the Court's own motion, that the opinion be amended as follows:

The previously sealed portions are hereby unsealed. The Clerk is directed to file and issue the unredacted opinion.

Footnote 24 of the opinion issued on June 17, 1997, shall be deleted. [Editor's Note: A different footnote 24 is included as part of this published opinion.]

Appeal from the United States District Court for the District of Columbia (No. 95ms00192).

Theodore S. Greenberg, Deputy Independent Counsel, Alexandria, VA, and Charles M. Kagay, Chief Appellate Counsel, San Francisco, CA, argued the cause for appellant, with whom Donald C. Smaltz, Independent Counsel, Los Angeles, CA, was on the briefs.

W. Neil Eggleston, Washington, DC, argued the cause for appellee, with whom Mark I. Levy and Demitri J. Nionakis, Washington, DC, were on the brief.

WALD, Circuit Judge

This case involves an effort by the Office of the Independent Counsel ("OIC") to compel performance of a subpoena duces tecum issued by the grand jury investigating former Secretary of Agriculture Alphonso Michael (Mike) Espy ("Espy") and served on the Counsel to the President ("White House Counsel"). The White House provided several folders of documents to the OIC in response to the subpoena but withheld 84 documents as privileged. After ordering that the withheld documents be produced for in camera review, the district court upheld the White House's claims of privilege in full. We now vacate the district court's opinion and remand for the court to conduct a more detailed review of the documents consistent with the principles set out in this opinion.


A. Factual Background

Allegations that Espy may have improperly accepted gifts from individuals and organizations with business before the U.S. Department of Agriculture ("USDA") first surfaced publicly in March of 1994. These allegations led to the appointment of an Independent Counsel, on September 9, 1994, to investigate whether Espy had unlawfully accepted gifts and related matters and to prosecute any related violations of federal law that the Independent Counsel reasonably believed had occurred. See In re Alphonso (Mike) Espy, No. 94-2 (D.C.Cir. Spec. Div.1994); see also In re Espy, 80 F.3d 501 (C.A.D.C.1996) (per curiam). This investigation into Espy's actions is still ongoing.

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The same allegations also led the President of the United States to direct the White House Counsel to investigate Espy's conduct in order to advise the President on whether he should take executive action against Espy. On October 3, 1994, Espy announced his resignation, effective December 31, 1994. A little over a week later, on October 11, 1994, the White House publicly released a report on Espy produced by the White House Counsel. The report stated that the President had asked the White House Counsel to address two issues: "(1) whether the President should direct that any further action be taken with respect to Secretary Espy's conduct; and (2) what actions should be taken to ensure that similar incidents are avoided by other Members of the Cabinet." After detailing several areas in which questions had been raised regarding Espy's conduct, the report concluded that no further executive action need be taken against Espy since he had announced his resignation, reimbursed the cost of questionable transactions, recused himself from matters involving meat and poultry inspection and undertaken screening measures for his travel. The report also recommended that efforts be undertaken to ensure that all cabinet members and other executive branch officers be given ethics training and be familiarized with applicable ethical standards for executive branch officers.

On October 14, 1994, the grand jury issued the subpoena duces tecum at issue in this case. The subpoena seeks all documents on Espy and other subjects of the OIC's investigation that were "accumulated for, relating in any way to, or considered in any fashion, by those persons who were consulted and/or contributed directly or indirectly to all drafts and/or versions" of the White House Counsel's report. Within this broad category of documents relating to the White House Counsel's report, the subpoena specifically requests notes of any meetings in the White House concerning Espy and of any conversations between Espy or his counsel and White House employees. On October 20, 1994, the White House issued a press statement stating that it had received a subpoena for documents relating to the White House Counsel's report and would comply with the subpoena. On November 17, 1994, the White House produced several folders of documents for the OIC, which the White House maintained represented all responsive documents except those withheld on the basis of privilege. On December 12, 1994, at the OIC's request, the White House produced a privilege log identifying the date, author, and recipient of each document withheld as well as a general statement of the nature of each document and the basis for the privilege on which the document was withheld. This privilege log indicated that 84 documents were withheld on grounds of the deliberative process privilege, with one document additionally withheld on grounds of attorney-client privilege. 1 In a later draft of the privilege log, the White House lists the privilege basis of all 84 documents as being "executive/deliberative privilege." 2

The OIC negotiated with the White House for access to the withheld documents for several months, finally filing a motion to compel production on June 7, 1995. The White House resisted the motion, arguing that the withheld documents came within both the privilege for presidential communications, recognized in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) ( Nixon), and the deliberative process privilege that protects the deliberations and decisionmaking process of executive officials generally. After a hearing on the motion to compel, the district court ordered the White House to produce the withheld documents for in camera review and the White House complied. Each document produced was accompanied by an ex parte cover

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sheet that explained the purpose of the document. The OIC also made an ex parte submission justifying the grand jury's need for the documents. On September 30, 1996, the court denied the motion to compel. The memorandum opinion accompanying the denial quoted from Nixon to the effect that the "generalized assertion of privilege [for presidential communications] must yield to the demonstrated, specific need for evidence in a pending criminal trial," 418 U.S. at 713, 94 S.Ct. at 3110, but then concluded that the White House had properly asserted the claimed privileges in this case. In reaching this conclusion, the court stated that it had carefully reviewed the documents, but did not discuss the documents in any further detail and provided no analysis of the grand jury's asserted need for the documents.

The OIC appeals from the district court's decision. The OIC argues that, at a minimum, the district court's order should be vacated and the matter remanded because the district court failed to provide any account of its reasoning in denying the OIC's motion to enforce the subpoena. On the merits, the OIC maintains that the district court erred in denying the motion to compel because the White House had waived its claims of privilege by releasing the final White House Counsel's report, stating it would comply with the subpoena, and unduly delaying in invoking privilege. The OIC further argues that the presidential communications privilege does not apply to the withheld documents because none of the documents was sent to or received from the President; the only document that the President received regarding the Espy investigation was the White House Counsel's final report, which was publicly released. Alternatively, the OIC claims that even if the withheld documents do enjoy the presidential privilege, the district court should have applied a less restrictive need standard than that articulated in Nixon, because this case involves a grand jury subpoena instead of a criminal trial subpoena, and the grand jury's need for the documents is sufficient to overcome the claims of executive privilege raised in this case. Although the OIC does not separately discuss the applicability of the deliberative process privilege in any detail, it maintains in passing that the need to obtain evidence that may shed light on governmental misconduct outweighs the deliberative process privilege.

The White House challenges each of these arguments. It insists that it has not waived its claims of privilege and that the withheld documents come under the presidential communications privilege because they were generated in response to the President's request for advice on whether to retain a cabinet officer, one of the President's core functions under Article II of the Constitution. The White House also notes that the deliberative privilege would apply to the documents...

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