Lindsey, In re

• Decision Date: 09 October 1998
• Docket Number: Nos. 98-3060,98-3062 and 98-3072,s. 98-3060
• Citation: 158 F.3d 1263
• Parties: In re Bruce R. LINDSEY (Grand Jury Testimony).
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1263

158 F.3d 1263

332 U.S.App.D.C. 357

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

Order Filed Oct. 9, 1998.

On Motion of President Clinton and the Office of the President to Unseal the Sealed Portions of This Court's Opinion and Related Pleadings

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

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

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

Douglas N. Letter, Attorney, U.S. Department of Justice, 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, were on the brief.

Kenneth W. Starr, Independent Counsel and Brett M. Kavanaugh, Associate Independent Counsel, argued the causes for appellee the United States, with whom Joseph M. Ditkoff, Associate Independent Counsel, 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.

ORDER

Upon consideration of the motion of President William Jefferson Clinton and the Office of the President, to unseal the sealed portions of this Court's opinion in In re: Bruce R. Lindsey (Grand Jury Testimony), 148 F.3d 1100 (D.C.Cir.1998), and the response of the United States of America, acting through the Office of the Independent Counsel, it is

ORDERED, that the redacted portions of this Court's opinion in In re: Bruce R. Lindsey (Grand Jury Testimony), 148 F.3d 1100 (D.C.Cir.1998), are no longer protected from public disclosure by Rule 6(e), FED. R.CRIM. P., in view of the public release, by the House Committee on the Judiciary, of the Brief for Appellant William Jefferson Clinton, filed under seal in this Court, see In re Motions of Dow Jones & Co., 142 F.3d 496, 505 (D.C.Cir.1998); Appendix to the Referral to the United States House of Representatives, at 2157-2205 (Sept. 18, 1998); and it is further

ORDERED, pursuant to this Court's Local Rule 47.1(c), that the entire opinion of this Court, and the entire opinion concurring and dissenting, in In re: Bruce R. Lindsey (Grand Jury Testimony), 148 F.3d 1100 (D.C.Cir.1998), shall be unsealed; and it is further

ORDERED, for the same reason, that the following materials also shall be unsealed:

1. Motion of the United States of America for Leave to File a Redacted Brief (June 23, 1998);

2. Order of this Court to show cause why the briefs in this case should not be unsealed (June 24, 1998);

3. Partial Opposition of Appellant William Jefferson Clinton to the Motion of the Office of Independent Counsel for Leave to File a Redacted Brief (June 24, 1998);

4. Response of the Office of the President to the Court's Order to Show Cause and the Office of the Independent Counsel's Motion for Leave to File a Redacted Brief (June 25, 1998);

5. Response to Order to Show Cause of Appellant William Jefferson Clinton (June 25, 1998);

6. Response of the United States of America to June 24, 1998, Show Cause Order Regarding Unsealing (June 25, 1998);

7. Unredacted Brief of Appellant the Office of the President (June 15, 1998);

8. Unredacted Brief Amicus Curiae for the United States Acting Through the Attorney General (June 17, 1998);

9. Unredacted Brief of Appellee the United States (June 22, 1998);

10. Unredacted Reply Brief of Appellant William Jefferson Clinton (June 25, 1998);

11. Unredacted Reply Brief of Appellant the Office of the President (June 25, 1998);

12. Motion to Unseal, brought by President Clinton and the Office of the President (October 6, 1998);

13. Response of the United States of America to Motion to Unseal (October 8, 1998);

14. Response of Amicus Curiae the United States, Acting Through the Attorney General, to Motion to Unseal (October 8, 1998).

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 (Espy), 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 and such common law privileges as may inhere in the relationship between White House Counsel and the President's personal counsel.

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.), (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 by the President's personal-attorney-client privilege. Lindsey also claimed work product protections related to the attorney-client privileges.

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 (Espy), 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 court also ruled the President's personal attorney-client privilege and work product immunity inapplicable to Lindsey's testimony.

Both the Office of the President and the President in his personal capacity 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 President Clinton's personal attorney-client privilege. 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...