Lindsey, In re

• Decision Date: 27 July 1998
• Docket Number: 98-3062 and 98-3072,Nos. 98-3060,s. 98-3060
• Citation: 148 F.3d 1100
• Parties: , 41 Fed.R.Serv.3d 370, 49 Fed. R. Evid. Serv. 753 In re: Bruce R. LINDSEY (Grand Jury Testimony)
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1100

148 F.3d 1100

331 U.S.App.D.C. 246, 41 Fed.R.Serv.3d 370,

49 Fed. R. Evid. Serv. 753

In re: Bruce R. LINDSEY (Grand Jury Testimony)

Nos. 98-3060, 98-3062 and 98-3072.

United States Court of Appeals,

District of Columbia Circuit.

Argued June 29, 1998.

Decided July 27, 1998.

Tatel, Circuit Judge, concurred in part and dissented in part and filed a separate opinion.

Appeals from the United States District Court for the District of Columbia (No. 98ms00095).

W. Neil Eggleston, Washington, DC, argued the cause for appellant the Office of the President, with whom Timothy K. Armstrong, Julie K. Brof, Washington, DC, and Charles F.C. Ruff, Counsel to the President, were on the briefs.

David E. Kendall, Washington, DC, argued the cause for appellant William J. Clinton, with whom Nicole K. Seligman, Washington, DC, Max Stier, Robert S. Bennett, Carl S. Rauh, Washington, DC, Amy Sabrin and Katharine S. Sexton were on the briefs.

Douglas N. Letter, Attorney, U.S. Department of Justice, Washington, DC, argued the cause for amicus curiae the Attorney General, with whom Janet Reno, Attorney General, Frank W. Hunger, Assistant Attorney General, Stephen W. Preston, Deputy Assistant Attorney General, and Stephanie R. Marcus, Attorney, New York City, were on the brief.

Kenneth W. Starr, Independent Counsel and Brett M. Kavanaugh, Associate Independent Counsel, Washington, DC, argued the causes for appellee the United States, with whom Joseph M. Ditkoff, Associate Independent Counsel, Arlington, VA, was on the brief.

Before: RANDOLPH, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Opinion dissenting from Part II and concurring in part and dissenting in part from Part III filed by Circuit Judge TATEL.

PER CURIAM:

In these expedited appeals, the principal question is whether an attorney in the Office of the President, having been called before a federal grand jury, may refuse, on the basis of a government attorney-client privilege, to answer questions about possible criminal conduct by government officials and others. To state the question is to suggest the answer, for the Office of the President is a part of the federal government, consisting of government employees doing government business, and neither legal authority nor policy nor experience suggests that a federal government entity can maintain the ordinary common law attorney-client privilege to withhold information relating to a federal criminal offense. The Supreme Court and this court have held that even the constitutionally based executive privilege for presidential communications fundamental to the operation of the government can be overcome upon a proper showing of need for the evidence in criminal trials and in grand jury proceedings. See United States v. Nixon, 418 U.S. 683, 707-12, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); In re Sealed Case, 121 F.3d 729, 736-38 (D.C.Cir.1997). In the context of federal criminal investigations and trials, there is no basis for treating legal advice differently from any other advice the Office of the President receives in performing its constitutional functions. The public interest in honest government and in exposing wrongdoing by government officials, as well as the tradition and practice, acknowledged by the Office of the President and by former White House Counsel, of government lawyers reporting evidence of federal criminal offenses whenever such evidence comes to them, lead to the conclusion that a government attorney may not invoke the attorney-client privilege in response to grand jury questions seeking information relating to the possible commission of a federal crime. The extent to which the communications of White House Counsel are privileged against disclosure to a federal grand jury depends, therefore, on whether the communications contain information of possible criminal offenses. Additional protection may flow from executive privilege

I.

On January 16, 1998, at the request of the Attorney General, the Division for the Purpose of Appointing Independent Counsels issued an order expanding the prosecutorial jurisdiction of Independent Counsel Kenneth W. Starr. Previously, the main focus of Independent Counsel Starr's inquiry had been on financial transactions involving President Clinton when he was Governor of Arkansas, known popularly as the Whitewater inquiry. The order now authorized Starr to investigate "whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law" in connection with the civil lawsuit against the President of the United States filed by Paula Jones. In re Motions of Dow Jones & Co., 142 F.3d 496, 497-98 (D.C.Cir.), petition for cert. filed, 66 U.S.L.W. 3790 (U.S. June 3, 1998) (No. 97-1959) (quoting order). "Thereafter, a grand jury here began receiving evidence about Monica Lewinsky and President Clinton, and others.... " Id. at 498.

On January 30, 1998, the grand jury issued a subpoena to Bruce R. Lindsey, an attorney admitted to practice in Arkansas. Lindsey currently holds two positions: Deputy White House Counsel and Assistant to the President. On February 18, February 19, and March 12, 1998, Lindsey appeared before the grand jury and declined to answer certain questions on the ground that the questions represented information protected from disclosure by a government attorney-client privilege applicable to Lindsey's communications with the President as Deputy White House Counsel, as well as by executive privilege, and Lindsey also claimed work product protections related to the attorney-client privilege.

On March 6, 1998, the Independent Counsel moved to compel Lindsey's testimony. The district court granted that motion on May 4, 1998. The court concluded that the President's executive privilege claim failed in light of the Independent Counsel's showing of need and unavailability. See In re Sealed Case, 121 F.3d at 754. It rejected Lindsey's government attorney-client privilege claim on similar grounds, ruling that the President possesses an attorney-client privilege when consulting in his official capacity with White House Counsel, but that the privilege is qualified in the grand jury context and may be overcome upon a sufficient showing of need for the subpoenaed communications and unavailability from other sources.

the Office of the President appealed the order granting the motion to compel Lindsey's testimony, challenging the district court's construction of both the government attorney-client privilege and The Independent Counsel then petitioned the Supreme Court to review the district court's decision on those issues, among others, before judgment by this court. On June 4, 1998, the Supreme Court denied certiorari, while indicating its expectation that "the Court of Appeals will proceed expeditiously to decide this case." United States v. Clinton, --- U.S. ----, 118 S.Ct. 2079, 141 L.Ed.2d 155 (1998). Following an expedited briefing schedule, on June 29, 1998, this court heard argument on the attorney-client issues. Neither the Office of the President nor the President in his personal capacity has appealed the district court's ruling on executive privilege. In Part II we address the availability of the government attorney-client privilege.

II.

The attorney-client privilege protects confidential communications made between clients and their attorneys when the communications are for the purpose of securing legal advice or services. See In re Sealed Case, 737 F.2d 94, 98-99 (D.C.Cir.1984). It "is one of the oldest recognized privileges for confidential communications." Swidler & Berlin v. United States, --- U.S. ----, 118 S.Ct. 2081, 2084-85, 141 L.Ed.2d 379 (1998).

The Office of the President contends that Lindsey's communications with the President and others in the White House should fall within this privilege both because the President, like any private person, needs to communicate fully and frankly with his legal advisors, and because the current grand jury investigation may lead to impeachment proceedings, which would require a defense of the President's official position as head of the executive branch of government, presumably with the assistance of White House Counsel. The Independent Counsel contends that an absolute government attorney-client privilege would be inconsistent with the proper role of the government lawyer and that the President should rely only on his private lawyers for fully confidential counsel.

Federal courts are given the authority to recognize privilege claims by Rule 501 of the Federal Rules of Evidence, which provides that

[e]xcept as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be 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 experience.

FED. R. EVID. 501. Although Rule 501 manifests a congressional desire to provide the courts with the flexibility to develop rules of privilege on a case-by-case basis, see Trammel v. United States, 445 U.S. 40, 47, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), the Supreme Court has been "disinclined to exercise this authority expansively," University of Pa. v. EEOC, 493 U.S. 182, 189, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990). "[T]hese exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." Nixon, 418 U.S. at 710, 94 S.Ct. 3090; see also Trammel, 445 U.S. at 50, 100 S.Ct. 906. Consequently, federal courts do not recognize evidentiary privileges unless doing so "promotes sufficiently important interests to outweigh the need for probative evidence." Id. at 51, 100 S.Ct. 906.

The Supreme Court has not articulated a...