                        United States Court of Appeals


                     FOR THE DISTRICT OF COLUMBIA CIRCUIT


              Argued June 29, 1998        Decided July 27, 1998


                                 No. 98-3060


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


                              Consolidated with 

                           Nos. 98-3062 and 98-3072


                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, Attor-
ney, 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.

     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 govern-
ment 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 do-
ing 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 presi-
dential 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 proceed-
ings.  See United States v. Nixon, 418 U.S. 683, 707-12 
(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 different-
ly 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 govern-
ment officials, as well as the tradition and practice, acknowl-
edged 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 possi-
ble 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 Indepen-
dent Counsels issued an order expanding the prosecutorial 
jurisdiction of Independent Counsel Kenneth W. Starr.  Pre-
viously, the main focus of Independent Counsel Starr's inqui-
ry 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 other-
wise 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).  "Thereaf-
ter, 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 Arkan-
sas.  Lindsey currently holds two positions:  Deputy White 
__________
     *  Double brackets signify sealed material.


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 ques-
tions on the ground that the questions represented informa-
tion 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 protec-
tions 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 Presi-
dent's executive privilege claim failed in light of the Indepen-
dent 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 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, 118 S. Ct. 2079 (1998).  Following an expedited 
briefing schedule, on June 29, 1998, this court heard argu-
ment 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 attor-
ney-client privilege;  [[
         ]].  
   

                                     II.


     The attorney-client privilege protects confidential communi-
cations 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, No. 97-1192, 1998 WL 333019, at *3 (U.S. June 25, 
1998).

     The Office of the President contends that Lindsey's com-
munications 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 govern-
ment, presumably with the assistance of White House Coun-
sel.  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 privi-
lege 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 congres-
sional desire to provide the courts with the flexibility to 
develop rules of privilege on a case-by-case basis, see Tram-
mel v. United States, 445 U.S. 40, 47 (1980), the Supreme 
Court has been "disinclined to exercise this authority expan-
sively," University of Pa. v. EEOC, 493 U.S. 182, 189 (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;  see also Trammel, 445 U.S. at 50.  Consequently, feder-
al courts do not recognize evidentiary privileges unless doing 
so "promotes sufficiently important interests to outweigh the 
need for probative evidence."  Id. at 51.

     The Supreme Court has not articulated a precise test to 
apply to the recognition of a privilege, but it has "placed 
considerable weight upon federal and state precedent," In re 
Sealed Case (Secret Service), No. 98-3069, 1998 WL 370584, 
at *3 (D.C. Cir. July 7, 1998), and on the existence of "a 
'public good transcending the normally predominant principle 
of utilizing all rational means for ascertaining the truth.' "  
Jaffee v. Redmond, 518 U.S. 1, 9 (1996) (quoting Trammel, 
445 U.S. at 50 (quoting Elkins v. United States, 364 U.S. 206, 
234 (1960) (Frankfurter, J., dissenting))).  That public good 
should be shown "with a high degree of clarity and certainty."  
In re Sealed Case (Secret Service), 1998 WL 370584, at *4.

                                      A.


     Courts, commentators, and government lawyers have long 
recognized a government attorney-client privilege in several 
contexts.  Much of the law on this subject has developed in 
litigation about exemption five of the Freedom of Information 
Act ("FOIA").  See 5 U.S.C. s 552(b)(5) (1994).  Under that 
exemption, "intra-agency memorandums or letters which 
would not be available by law to a party other than an agency 
in litigation with the agency" are excused from mandatory 
disclosure to the public.  Id.;  see also S. Rep. No. 89-813, at 2 
(1965) (including within exemption five "documents which 
would come within the attorney-client privilege if applied to 



private parties").  We have recognized that "Exemption 5 
protects, as a general rule, materials which would be protect-
ed under the attorney-client privilege."  Coastal States Gas 
Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 
1980).  "In the governmental context, the 'client' may be the 
agency and the attorney may be an agency lawyer."  Tax 
Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997);  see also 
Brinton v. Department of State, 636 F.2d 600, 603-04 (D.C. 
Cir. 1980).  In Lindsey's case, his client--to the extent he 
provided legal services--would be the Office of the Presi-
dent.1

     Exemption five does not itself create a government attor-
ney-client privilege.  Rather, "Congress intended that agen-
cies should not lose the protection traditionally afforded 
through the evidentiary privileges simply because of the 
passage of the FOIA."  Coastal States, 617 F.2d at 862.  In 
discussing the government attorney-client privilege applicable 
to exemption five, we have mentioned the usual advantages:

     the attorney-client privilege has a proper role to play in 
     exemption five cases....  In order to ensure that a 
     client receives the best possible legal advice, based on a 
     full and frank discussion with his attorney, the attorney-
     client privilege assures him that confidential communica-
     tions to his attorney will not be disclosed without his 
     consent.  We see no reason why this same protection 

__________
     1  [[

 

 

 

 

 

  ]]



     should not be extended to an agency's communications 
     with its attorneys under exemption five.

Mead Data Cent., Inc. v. United States Dep't of Air Force, 
566 F.2d 242, 252 (D.C. Cir. 1977).  Thus, when "the Govern-
ment is dealing with its attorneys as would any private party 
seeking advice to protect personal interests, and needs the 
same assurance of confidentiality so it will not be deterred 
from full and frank communications with its counselors," 
exemption five applies.  Coastal States, 617 F.2d at 863.

     Furthermore, the proposed (but never enacted) Federal 
Rules of Evidence concerning privileges, to which courts have 
turned as evidence of common law practices, see, e.g., United 
States v. Gillock, 445 U.S. 360, 367-68 (1980);  In re Bieter 
Co., 16 F.3d 929, 935 (8th Cir. 1994);  Linde Thomson Lang-
worthy Kohn & Van Dyke v. Resolution Trust Corp., 5 F.3d 
1508, 1514 (D.C. Cir. 1993);  United States v. (Under Seal), 
748 F.2d 871, 874 n.5 (4th Cir. 1984);  United States v. 
Mackey, 405 F. Supp. 854, 858 (E.D.N.Y. 1975), recognized a 
place for a government attorney-client privilege.  Proposed 
Rule 503 defined "client" for the purposes of the attorney-
client privilege to include "a person, public officer, or corpora-
tion, association, or other organization or entity, either public 
or private."  Proposed Fed. R. Evid. 503(a)(1), reprinted in 56 
F.R.D. 183, 235 (1972).  The commentary to the proposed 
rule explained that "[t]he definition of 'client' includes govern-
mental bodies."  Id. advisory committee's note.  The Restate-
ment also extends attorney-client privilege to government 
entities.  See Restatement (Third) of the Law Governing 
Lawyers s 124 (Proposed Final Draft No. 1, 1996) [hereinaf-
ter Restatement].

     The practice of attorneys in the executive branch reflects 
the common understanding that a government attorney-client 
privilege functions in at least some contexts.  The Office of 
Legal Counsel in the Department of Justice concluded in 1982 
that

     [a]lthough the attorney-client privilege traditionally has 
     been recognized in the context of private attorney-client 
     relationships, the privilege also functions to protect com-



     munications between government attorneys and client 
     agencies or departments, as evidenced by its inclusion in 
     the FOIA, much as it operates to protect attorney-client 
     communications in the private sector.

Theodore B. Olsen, Assistant Attorney General, Office of 
Legal Counsel, Confidentiality of the Attorney General's 
Communications in Counseling the President, 6 Op. Off. 
Legal Counsel 481, 495 (1982).  The Office of Legal Counsel 
also concluded that when government attorneys stand in the 
shoes of private counsel, representing federal employees sued 
in their individual capacities, confidential communications be-
tween attorney and client are privileged.  See Antonin Scalia, 
Assistant Attorney General, Office of Legal Counsel, Disclo-
sure of Confidential Information Received by U.S. Attorney 
in the Course of Representing a Federal Employee (Nov. 30, 
1976);  Ralph W. Tarr, Acting Assistant Attorney General, 
Office of Legal Counsel, Duty of Government Lawyer Upon 
Receipt of Incriminating Information in the Course of an 
Attorney-Client Relationship with Another Government Em-
ployee (Mar. 29, 1985);  see also 28 C.F.R. s 50.15(a)(3) 
(1998).

                                      B.


     Recognizing that a government attorney-client privilege 
exists is one thing.  Finding that the Office of the President 
is entitled to assert it here is quite another.

     It is settled law that the party claiming the privilege bears 
the burden of proving that the communications are protected.  
As oft-cited definitions of the privilege make clear, only 
communications that seek "legal advice" from "a professional 
legal adviser in his capacity as such" are protected.  See 8 
John Henry Wigmore, Evidence in Trials at Common Law 
s 2292, at 554 (McNaughton rev. 1961).  Or, in a formulation 
we have adopted, the privilege applies only if the person to 
whom the communication was made is "a member of the bar 
of a court" who "in connection with th[e] communication is 
acting as a lawyer" and the communication was made "for the 
purpose of securing primarily either (i) an opinion on law or 



(ii) legal services or (iii) assistance in some legal proceeding."  
In re Sealed Case, 737 F.2d at 98-99 (quoting United States 
v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 
(D.Mass. 1950)).
     On the record before us, it seems likely that at least some 
of the conversations for which Lindsey asserted government 
attorney-client privilege did not come within the formulation 
just quoted.  [[

 

 

 
 

 

 

     ]].  Both of these subjects arose from the expanded juris-
diction of the Independent Counsel, which did not become 
public until January 20, 1998.  Before then, any legal advice 
Lindsey rendered in connection with Jones v. Clinton, a 
lawsuit involving President Clinton in his personal capacity, 
likely could not have been covered by government attorney-
client privilege.2  [[

 

 

 

 

 

     ]].  According to the Restatement, "consultation with one 
admitted to the bar but not in that other person's role as 

__________
     2  We do not foreclose a showing by Lindsey when he appears 
again before the grand jury that prior to January 20, 1998, he gave 
legal advice as Deputy White House Counsel in regard to how 

lawyer is not protected."  Restatement s 122 cmt. c. 
"[W]here one consults an attorney not as a lawyer but as a 
friend or as a business adviser or banker, or negotiator ... 
the consultation is not professional nor the statement privi-
leged."  1 McCormick on Evidence s 88, at 322-24 (4th ed. 
1992) (footnotes omitted).  Thus Lindsey's advice on political, 
strategic, or policy issues, valuable as it may have been, 
would not be shielded from disclosure by the attorney-client 
privilege.

     As for conversations after January 20th, the Office of the 
President must "present the underlying facts demonstrating 
the existence of the privilege" in order to carry its burden.  
See FTC v. Shaffner, 626 F.2d 32, 37 (7th Cir. 1980).  A 
blanket assertion of the privilege will not suffice.  Rather, 
"[t]he proponent must conclusively prove each element of the 
privilege."  SEC v. Gulf & Western Indus., 518 F. Supp. 675, 
682 (D.D.C. 1981).  In response to the Independent Counsel's 
questions, Lindsey invariably asserted executive privilege and 
attorney-client privilege.  On this record, it is impossible to 
determine whether Lindsey believed that both privileges 
applied or whether he meant to invoke them on an "either/or" 
basis.  As we have said, the district court's rejection of the 
executive privilege claim has not been appealed.  With this 
privilege out of the picture, the Office of the President had to 
show that Lindsey's conversations "concerned the seeking of 
legal advice" and were between President Clinton and Lind-
sey or between others in the White House and Lindsey while 
Lindsey was "acting in his professional capacity" as an attor-
ney.  Shaffner, 626 F.2d at 37.

     With regard to most of the communications that were the 
subject of questions before the grand jury, it does not appear 
to us that any such showing was made in the grand jury by 
Lindsey or in the district court by the Office of the President 
in the proceedings leading to the order to compel his testimo-
ny.  This may be attributable to the parties' focus in the 
district court.  The arguments on both sides centered on 
whether any attorney-client privilege protected the conversa-
tions about which Lindsey was asked, not on whether--if the 
privilege could be invoked--the conversations were covered 

__________
private litigation involving the President was affecting the Office of 
the President.


by it.  In light of this, and in view of the Administration's 
abandonment of its executive privilege claim, Lindsey would 
have to return to the grand jury no matter how we ruled on 
the government attorney-client privilege claim.

     There is, however, no good reason for withholding decision 
on the issues now before us.  We have little doubt that at 
least one of Lindsey's conversations subject to grand jury 
questioning "concerned the seeking of legal advice" and was 
between President Clinton and Lindsey or between others in 
the White House and Lindsey while Lindsey was "acting in 
his professional capacity" as an attorney.  See id. [[

 

 

 

 

 

 

 

         ]].  The issue whether the government attorney-
client privilege could be invoked in these circumstances is 
therefore ripe for decision.
     Moreover, the case has been fully briefed and argued.  The 
Supreme Court has asked us to expedite our disposition of 
these appeals.  Sending this case back for still another round 
of grand jury testimony, assertions of privileges and immuni-
ties, a district court judgment, and then another appeal would 
be inconsistent with the Supreme Court's request and would 
do nothing but prolong the grand jury's investigation.  The 
parties, we believe, are entitled now to a ruling to govern 
Lindsey's future grand jury appearance.
     We therefore turn to the question whether an attorney-
client privilege permits a government lawyer to withhold from 
a grand jury information relating to the commission of possi-
ble crimes by government officials and others.  Although the 
cases decided under FOIA recognize a government attorney-



client privilege that is rather absolute in civil litigation, those 
cases do not necessarily control the application of the privi-
lege here.  The grand jury, a constitutional body established 
in the Bill of Rights, "belongs to no branch of the institutional 
Government, serving as a kind of buffer or referee between 
the Government and the people," United States v. Williams, 
504 U.S. 36, 47 (1992), while the Independent Counsel is by 
statute an officer of the executive branch representing the 
United States.  For matters within his jurisdiction, the Inde-
pendent Counsel acts in the role of the Attorney General as 
the country's chief law enforcement officer.  See 28 U.S.C. 
s 594(a) (1994).  Thus, although the traditional privilege be-
tween attorneys and clients shields private relationships from 
inquiry in either civil litigation or criminal prosecution, com-
peting values arise when the Office of the President resists 
demands for information from a federal grand jury and the 
nation's chief law enforcement officer.  As the drafters of the 
Restatement recognized, "More particularized rules may be 
necessary where one agency of government claims the privi-
lege in resisting a demand for information by another.  Such 
rules should take account of the complex considerations of 
governmental structure, tradition, and regulation that are 
involved."  Restatement s 124 cmt. b. For these reasons, 
others have agreed that such "considerations" counsel against 
"expansion of the privilege to all governmental entities" in all 
cases.  24 Charles Alan Wright & Kenneth W. Graham, Jr., 
Federal Practice and Procedure s 5475, at 125 (1986).

     The question whether a government attorney-client privi-
lege applies in the federal grand jury context is one of first 
impression in this circuit, and the parties dispute the import 
of the lack of binding authority.  The Office of the President 
contends that, upon recognizing a government attorney-client 
privilege, the court should find an exception in the grand jury 
context only if practice and policy require.  To the contrary, 
the Independent Counsel contends, in essence, that the justi-
fication for any extension of a government attorney-client 
privilege to this context needs to be clear.  These differences 
in approach are not simply semantical:  they represent differ-
ent versions of what is the status quo.  To argue about an 



"exception" presupposes that the privilege otherwise applies 
in the federal grand jury context;  to argue about an "exten-
sion" presupposes the opposite.  In Swidler & Berlin, the 
Supreme Court considered whether, as the Independent 
Counsel contended, it should create an exception to the 
personal attorney-client privilege allowing disclosure of confi-
dences after the client's death.  See Swidler & Berlin, 1998 
WL 333019, at *2.  After finding that the Independent Coun-
sel was asking the Court "not simply to 'construe' the privi-
lege, but to narrow it, contrary to the weight of the existing 
body of caselaw," the Court concluded that the Independent 
Counsel had not made a sufficient showing to warrant the 
creation of such an exception to the settled rule.  Id. at *7.

     In the instant case, by contrast, there is no such existing 
body of caselaw upon which to rely and no clear principle that 
the government attorney-client privilege has as broad a scope 
as its personal counterpart.  Because the "attorney-client 
privilege must be 'strictly confined within the narrowest 
possible limits consistent with the logic of its principle,' " In 
re Sealed Case, 676 F.2d 793, 807 n.44 (D.C. Cir. 1982) 
(quoting In re Grand Jury Investigation, 599 F.2d 1224, 1235 
(3d Cir. 1979));  accord Trammel, 445 U.S. at 50, and because 
the government attorney-client privilege is not recognized in 
the same way as the personal attorney-client privilege ad-
dressed in Swidler & Berlin, we believe this case poses the 
question whether, in the first instance, the privilege extends 
as far as the Office of the President would like.  In other 
words, pursuant to our authority and duty under Rule 501 of 
the Federal Rules of Evidence to interpret privileges "in light 
of reason and experience," Fed. R. Evid. 501, we view our 
exercise as one in defining the particular contours of the 
government attorney-client privilege.

     When an executive branch attorney is called before a 
federal grand jury to give evidence about alleged crimes 
within the executive branch, reason and experience, duty, and 
tradition dictate that the attorney shall provide that evidence.  
With respect to investigations of federal criminal offenses, 
and especially offenses committed by those in government, 
government attorneys stand in a far different position from 



members of the private bar.  Their duty is not to defend 
clients against criminal charges and it is not to protect 
wrongdoers from public exposure.  The constitutional respon-
sibility of the President, and all members of the Executive 
Branch, is to "take Care that the Laws be faithfully execut-
ed."  U.S. Const. art. II, s 3.  Investigation and prosecution 
of federal crimes is one of the most important and essential 
functions within that constitutional responsibility.  Each of 
our Presidents has, in the words of the Constitution, sworn 
that he "will faithfully execute the Office of President of the 
United States, and will to the best of [his] Ability, preserve, 
protect and defend the Constitution of the United States."  
Id. art. II, s 1, cl. 8.  And for more than two hundred years 
each officer of the Executive Branch has been bound by oath 
or affirmation to do the same.  See id. art.  VI, cl. 3;  see also 
28 U.S.C. s 544 (1994).  This is a solemn undertaking, a 
binding of the person to the cause of constitutional govern-
ment, an expression of the individual's allegiance to the 
principles embodied in that document.  Unlike a private 
practitioner, the loyalties of a government lawyer therefore 
cannot and must not lie solely with his or her client agency.3

     The oath's significance is underscored by other evocations 
of the ethical duties of government lawyers.4  The Profession-

__________
     3  We recognize, as our dissenting colleague emphasizes, that 
every lawyer must take an oath to enter the bar of any court.  But 
even after entering the bar, a government attorney must take 
another oath to enter into government service;  that in itself shows 
the separate meaning of the government attorney's oath.  More-
over, the oath is significant to our analysis only to the extent that it 
underlies the fundamental differences in the roles of government 
and private attorneys--of particular note, the fact that private 
attorneys cannot take official actions.

     4  Indeed, the responsibilities of government lawyers to the 
public have long governed the actions they can take on behalf of 
their "client":

     The United States Attorney is the representative not of an 
     ordinary party to a controversy, but of a sovereignty whose 
     obligation to govern impartially is as compelling as its obli-


al Ethics Committee of the Federal Bar Association has 
described the public trust of the federally employed lawyer as 
follows:

     [T]he government, over-all and in each of its parts, is 
     responsible to the people in our democracy with its 
     representative form of government.  Each part of the 
     government has the obligation of carrying out, in the 
     public interest, its assigned responsibility in a manner 
     consistent with the Constitution, and the applicable laws 
     and regulations.  In contrast, the private practitioner 
     represents the client's personal or private interest....  
     [W]e do not suggest, however, that the public is the 
     client as the client concept is usually understood.  It is to 
     say that the lawyer's employment requires him to ob-
     serve in the performance of his professional responsibili-
     ty the public interest sought to be served by the govern-
     mental organization of which he is a part.

Federal Bar Association Ethics Committee, The Government 
Client and Confidentiality:  Opinion 73-1, 32 Fed. B.J. 71, 72 
(1973).  Indeed, before an attorney in the Justice Department 
can step into the shoes of private counsel to represent a 
federal employee sued in his or her individual capacity, the 
Attorney General must determine whether the representation 
would be in the interest of the United States.  See 28 C.F.R. 
s 50.15(a).  The obligation of a government lawyer to uphold 
the public trust reposed in him or her strongly militates 
against allowing the client agency to invoke a privilege to 
prevent the lawyer from providing evidence of the possible 
commission of criminal offenses within the government.  As 

__________
     gation to govern at all;  and whose interest ... is not that it 
     shall win a case, but that justice shall be done.

Berger v. United States, 295 U.S. 78, 88 (1935).  In keeping with 
these interests, prosecutors must disclose to the defendant exculpa-
tory evidence, see Brady v. Maryland, 373 U.S. 83, 87 (1963), and 
must try to "seek justice, not merely to convict," Model Code of 
Professional Responsibility EC 7-13 (1980).  Similarly, the gov-
ernment lawyer in a civil action must "seek justice" and avoid unfair 
settlements or results.  Id. EC 7-14.



Judge Weinstein put it, "[i]f there is wrongdoing in govern-
ment, it must be exposed....  [The government lawyer's] 
duty to the people, the law, and his own conscience requires 
disclosure.... "  Jack B. Weinstein, Some Ethical and Polit-
ical Problems of a Government Attorney, 18 Maine L. Rev. 
155, 160 (1966).

     This view of the proper allegiance of the government 
lawyer is complemented by the public's interest in uncovering 
illegality among its elected and appointed officials.  While the 
President's constitutionally established role as superintendent 
of law enforcement provides one protection against wrongdo-
ing by federal government officials, see United States v. 
Valenzuela-Bernal, 458 U.S. 858, 863 (1982), another protec-
tion of the public interest is through having transparent and 
accountable government.5  As James Madison observed,

     [a] popular Government, without popular information, or 
     the means of acquiring it, is but a Prologue to a Farce or 
     a Tragedy;  or, perhaps both.  Knowledge will forever 
     govern ignorance:  And a people who mean to be their 
     own Governors, must arm themselves with the power 
     which knowledge gives.

Letter from James Madison to W.T. Barry (Aug. 4, 1822), in 
9 The Writings of James Madison 103 (Gaillard Hunt ed., 
1910).  This court has accordingly recognized that "openness 
in government has always been thought crucial to ensuring 
that the people remain in control of their government."  In re 
Sealed Case (Espy), 121 F.3d at 749.  Privileges work against 
these interests because their recognition "creates the risk 
that a broad array of materials in many areas of the executive 
branch will become 'sequester[ed]' from public view."  Id. 
(quoting Wolfe v. Department of Health & Human Servs., 815 
F.2d 1527, 1533 (D.C. Cir. 1987)).  Furthermore, "to allow 
any part of the federal government to use its in-house attor-

__________
     5  Congress has clearly indicated, as a matter of policy, that 
federal employees should not withhold information relating to possi-
ble criminal misconduct by federal employees on any basis.  We 
discuss at more length Congress's recognition of these concerns 
below in our discussion of 28 U.S.C. s 535(b).



neys as a shield against the production of information rele-
vant to a federal criminal investigation would represent a 
gross misuse of public assets."  In re Grand Jury Subpoena 
Duces Tecum, 112 F.3d 910, 921 (8th Cir.), cert. denied, 117 S. 
Ct. 2482 (1997).

     Examination of the practice of government attorneys fur-
ther supports the conclusion that a government attorney, 
even one holding the title Deputy White House Counsel, may 
not assert an attorney-client privilege before a federal grand 
jury if communications with the client contain information 
pertinent to possible criminal violations.  The Office of the 
President has traditionally adhered to the precepts of 28 
U.S.C. s 535(b), which provides that

     [a]ny information ... received in a department or agency 
     of the executive branch of the Government relating to 
     violations of title 18 involving Government officers and 
     employees shall be expeditiously reported to the Attor-
     ney General.

28 U.S.C. s 535(b) (1994).  We need not decide whether 
section 535(b) alone requires White House Counsel to testify 
before a grand jury.6  The statute does not clearly apply to 
the Office of the President.  The Office is neither a "depart-
ment," as that term is defined by the statute, see 5 U.S.C. 
s 101 (1994);  28 U.S.C. s 451 (1994);  Haddon v. Walters, 43 
F.3d 1488, 1490 (D.C. Cir. 1995) (per curiam), nor an "agen-
cy," see Kissinger v. Reporters Comm. for Freedom of the 
Press, 445 U.S. 136, 156 (1980) (FOIA case);  see also Arm-
strong v. Executive Office of the President, 1 F.3d 1274, 1295 

__________
     6  28 U.S.C. s 535(a) authorizes the Attorney General to "inves-
tigate any violation of title 18 [the federal criminal code] involving 
Government officers and employees."  The Independent Counsel 
fills the shoes of the Attorney General in this regard because 
Congress has given the Independent Counsel "with respect to all 
matters in [his] prosecutorial jurisdiction ... full power and inde-
pendent authority to exercise all investigative and prosecutorial 
functions and powers of ... the Attorney General."  28 U.S.C. 
s 594(a);  see In re Sealed Case (Secret Service), 1998 WL 370584, 
at *7.



(D.C. Cir. 1993) (per curiam);  National Sec. Archive v. 
Archivist of the United States, 909 F.2d 541, 545 (D.C.Cir.
1990) (per curiam).  However, at the very least "[section] 
535(b) evinces a strong congressional policy that executive 
branch employees must report information" relating to viola-
tions of Title 18, the federal criminal code.  In re Sealed Case 
(Secret Service), 1998 WL 370584, at *7.  As the House 
Committee Report accompanying section 535 explains, "[t]he 
purpose" of the provision is to "require the reporting by the 
departments and agencies of the executive branch to the 
Attorney General of information coming to their attention 
concerning any alleged irregularities on the part of officers 
and employees of the Government."  H.R. Rep. No. 83-2622, 
at 1 (1954).  Section 535(b) suggests that all government 
employees, including lawyers, are duty-bound not to withhold 
evidence of federal crimes.

     Furthermore, government officials holding top legal posi-
tions have concluded, in light of section 535(b), that White 
House lawyers cannot keep evidence of crimes committed by 
government officials to themselves.  In a speech delivered 
after the Kissinger FOIA case was handed down, Lloyd 
Cutler, who served as White House Counsel in the Carter and 
Clinton Administrations, discussed the "rule of making it your 
duty, if you're a Government official as we as lawyers are, a 
statutory duty to report to the Attorney General any evidence 
you run into of a possible violation of a criminal statute."  
Lloyd N. Cutler, The Role of the Counsel to the President of 
the United States, 35 Record of the Ass'n of the Bar of the 
City of New York No. 8, at 470, 472 (1980).  Accordingly, 
"[w]hen you hear of a charge and you talk to someone in the 
White House ... about some allegation of misconduct, almost 
the first thing you have to say is, 'I really want to know about 
this, but anything you tell me I'll have to report to the 
Attorney General.' "  Id.  Similarly, during the Nixon admin-
istration, Solicitor General Robert H. Bork told an adminis-
tration official who invited him to join the President's legal 
defense team:  "A government attorney is sworn to uphold 
the Constitution.  If I come across evidence that is bad for 
the President, I'll have to turn it over.  I won't be able to sit 



on it like a private defense attorney."  A Conversation with 
Robert Bork, D.C. Bar Rep., Dec. 1997-Jan. 1998, at 9.

     The Clinton Administration itself endorsed this view as 
recently as a year ago.  In the proceedings leading to the 
Supreme Court's denial of certiorari with regard to the 
Eighth Circuit's decision in In re Grand Jury Subpoena 
Duces Tecum, the Office of the President assured the Su-
preme Court that it "embraces the principles embodied in 
Section 535(b)" and acknowledged that "the Office of the 
President has a duty, recognized in official policy and prac-
tice, to turn over evidence of the crime."  Reply Brief for 
Office of the President at 7, Office of the President v. Office of 
Independent Counsel, 117 S. Ct. 2482 (1997) (No. 96-1783).  
The Office of the President further represented that "on 
various occasions" it had "referred information to the Attor-
ney General reflecting the possible commission of a criminal 
offense--including information otherwise protected by attor-
ney-client privilege."  Id.  At oral argument, counsel for the 
Office of the President reiterated this position.  In addition, 
the White House report on possible misdeeds relating to the 
White House Travel Office stated that "[i]f there is a reason-
able suspicion of a crime ... about which White House 
personnel may have knowledge, the initial communication of 
this information should be made to the Attorney General, the 
Deputy Attorney General, or the Associate Attorney Gener-
al."  White House Travel Office Management Review 23 
(1993).

     We are not aware of any previous deviation from this 
understanding of the role of government counsel.  We know 
that Nixon White House Counsel Fred Buzhardt testified 
before the Watergate grand jury without invoking attorney-
client privilege, although not much may be made of this.7  See 
Anthony Ripley, Milk Producers' Group Fined $5,000 for 
Nixon Gifts, N.Y. Times, May 7, 1974, at 38.  On the other 

__________
     7  President Nixon waived executive privilege and attorney-
client privilege before the grand jury.  See Special Prosecution 
Force, Watergate Report 88 (1975) [hereinafter Watergate Re-
port].



hand, the Office of the President points out that C. Boyden 
Gray, White House Counsel during the Bush Administration, 
and his deputy, John Schmitz, refused to be interviewed by 
the Independent Counsel investigating the Iran-Contra affair 
and only produced documents subject to an agreement that 
"any privilege against disclosure ... including the attorney-
client privilege" was not waived.  1 Lawrence E. Walsh, 
Final Report of the Independent Counsel for Iran/Contra 
Matters 478-79 & n.52 (1993).  However, the Independent 
Counsel in that investigation had not subpoenaed Gray or 
Schmitz to testify before a grand jury, and there is no 
indication that the information sought from them constituted 
evidence of any criminal offense.  Independent Counsel 
Walsh apparently sought to question these individuals merely 
to complete his final report.  See id.  In any event, even 
outside the grand jury context, the general practice of gov-
ernment counsel has been to cooperate with the investigations 
of independent counsels.  For example, Peter Wallison, White 
House Counsel under President Reagan, produced his diary 
for the Iran-Contra investigation and cooperated in other 
ways.   See id. at 44, 470 n.137, 517, 520.  Other government 
attorneys both produced documents and agreed to be inter-
viewed for that investigation.  See id. at 346-48, 366-68, 536 
& nn.116-17, 537.

     The Office of the President asserts two principal contribu-
tions to the public good that would come from a government 
attorney's withholding evidence from a grand jury on the 
basis of an attorney-client privilege.  First, it maintains that 
the values of candor and frank communications that the 
privilege embodies in every context would apply to Lindsey's 
communications with the President and others in the White 
House.  Government officials, the Office of the President 
claims, need accurate advice from government attorneys as 
much as private individuals do, but they will be inclined to 
discuss their legal problems honestly with their attorneys 
only if they know that their communications will be confiden-
tial.

     We may assume that if the government attorney-client 
privilege does not apply in certain contexts this may chill 



some communications between government officials and gov-
ernment lawyers.  Even so, government officials will still 
enjoy the benefit of fully confidential communications with 
their attorneys unless the communications reveal information 
relating to possible criminal wrongdoing.  And although the 
privacy of these communications may not be absolute before 
the grand jury, the Supreme Court has not been troubled by 
the potential chill on executive communications due to the 
qualified nature of executive privilege.8  Compare Nixon, 418 
U.S. at 712-13 (discounting the chilling effects of the qualifi-
cation of the presidential communications privilege on the 
candor of conversations), with Swidler & Berlin, 1998 WL 
333019, at *6 (stating, in the personal attorney-client privilege 
context, that an uncertain privilege is often no better than no 
privilege at all).  Because both the Deputy White House 
Counsel and the Independent Counsel occupy positions within 
the federal government, their situation is somewhat compara-
ble to that of corporate officers who seek to keep their 
communications with company attorneys confidential from 
each other and from the shareholders.  Under the widely 
followed doctrine announced in Garner v. Wolfinbarger, 430 
F.2d 1093 (5th Cir. 1970), corporate officers are not always 
entitled to assert such privileges against interests within the 
corporation, and accordingly must consult with company at-
torneys aware that their communications may not be kept 
confidential from shareholders in litigation.  See id. at 1101.  
Any chill on candid communications with government counsel 
flowing from our decision not to extend an absolute attorney-
client privilege to the grand jury context is both comparable 
and similarly acceptable.

     Moreover, nothing prevents government officials who seek 
completely confidential communications with attorneys from 
consulting personal counsel.  The President has retained 
several private lawyers, and he is entitled to engage in the 
completely confidential communications with those lawyers 

__________
     8  We do not address privilege exceptions relating to military 
secrets or other exempted communications.



befitting an attorney and a client in a private relationship.  
[[         ]]

     The Office of the President contends that White House 
Counsel's role in preparing for any future impeachment pro-
ceedings alters the policy analysis.9  The Ethics in Govern-
ment Act requires the Independent Counsel to "advise the 
House of Representatives of any substantial and credible 
information ... that may constitute grounds for an impeach-
ment."  28 U.S.C. s 595(c) (1994).  In November 1997, a 
Congressman introduced a resolution in the House of Repre-
sentatives calling for an inquiry into possible grounds for 
impeachment of the President.  See H.R. Res. 304, 105th 
Cong. (1997).  Thus, to the extent that impeachment proceed-
ings may be on the horizon, the Office of the President 
contends that White House Counsel must be given maximum 
protection against grand jury inquiries regarding their efforts 
to protect the Office of the President, and the President in his 
personal capacity, against impeachment.  Additionally, the 
Office of the President notes that the Independent Counsel 
serves as a conduit to Congress for information concerning 
grounds for impeachment obtained by the grand jury, and, 
consequently, an exception to the attorney-client privilege 
before the grand jury will effectively abrogate any absolute 
privilege those communications might otherwise enjoy in fu-
ture congressional investigations and impeachment hearings.

     Although the Independent Counsel and the Office of the 
President agree that White House Counsel can represent the 
President in the impeachment process, the precise contours of 
Counsel's role are far from settled.10  In any event, no matter 

__________
     9  The district court did not rule upon this argument, and hence 
we lack the benefit of that court's thinking in addition to a complete 
record on the nature, scope, and content of communications be-
tween the President and Deputy White House Counsel with regard 
to the impeachment issue.  See Gilda Marx, Inc. v. Wildwood 
Exercise, Inc., 85 F.3d 675, 679 (D.C. Cir. 1996) (per curiam).

     10  While a prior Comptroller General has thought that White 
House Counsel could properly be paid out of federal funds for 
representing the President in matters leading up to an impeach-


what the role should be, impeachment is fundamentally a 
political exercise.  See The Federalist No. 65 (Alexander 
Hamilton);  Joseph Story, Commentaries on the Constitution 
s 764, at 559 (5th ed. 1905).  Impeachment proceedings in the 
House of Representatives cannot be analogized to traditional 
legal processes and even the procedures used by the Senate 
in "trying" an impeachment may not be like those in a judicial 
trial.  See (Walter) Nixon v. United States, 506 U.S. 224, 
228-31 (1993);  Story, Commentaries on the Constitution 
s 765, at 559-60.  How the policy and practice supporting the 
common law attorney-client privilege would apply in such a 
political context thus is uncertain.  In preparing for the 
eventuality of impeachment proceedings, a White House 
Counsel in effect serves the President as a political advisor, 
albeit one with legal expertise:  to wit, Lindsey occupies a 
dual position as an Assistant to the President and a Deputy 
White House Counsel.  Thus, information gathered in prepa-
ration for impeachment proceedings and conversations re-
garding strategy are presumably covered by executive, not 
attorney-client, privilege.  While the need for secrecy might 
arguably be greater under these circumstances, the district 
court's ruling on executive privilege is not before us.  In 

__________
ment, see Letter from Elmer B. Staats, U.S. Comptroller General, 
to Rep. John F. Seiberling 7 (Oct. 25, 1974), history yields little 
guidance on the role that White House Counsel would properly play 
in impeachment proceedings.  The only President impeached by the 
House and tried by the Senate, Andrew Johnson, retained private 
counsel, and his Attorney General resigned from office in order to 
assist in his defense.  See William H. Rehnquist, Grand Inquests 
222 (1992).  In contrast, after the House Judiciary Committee 
began an impeachment inquiry into the Watergate scandal, Presi-
dent Richard Nixon appointed James D. St. Clair as a special 
counsel to the President for Watergate-related matters.  See Wa-
tergate Report 103.  Although Nixon resigned before the House of 
Representatives voted on any articles of impeachment, St. Clair 
handled much of the President's defense until the President's 
resignation.  See id. at 103-15.  At the very least, nothing prevents 
a President faced with impeachment from retaining private counsel, 
and in turn this makes less clear what might be the division of labor 
between White House Counsel and private counsel.



addition, in responding to the grand jury investigation and 
gathering information in preparation for future developments 
in accordance with his official duties, White House Counsel 
may need to interact with the President's private attorneys, 
and to that extent other privileges may be implicated.  
[[         ]]

     Nor is our conclusion altered by the Office of the Presi-
dent's concern over the possibility that Independent Counsel 
will convey otherwise privileged grand jury testimony of 
White House Counsel to Congress.11  Cf. Fed. R. Crim. P. 6(e).  
First, no one can say with certainty the extent to which a 
privilege would generally protect a White House Counsel 
from testifying at a congressional hearing.  The issue is not 
presently before the court.12  See Nixon, 418 U.S. at 712 n.19;  
In re Sealed Case (Espy), 121 F.3d at 739 nn.9-10, 753.  
Second, the particular procedures and evidentiary rules to be 
employed by the House and Senate in any future impeach-
ment proceedings remain entirely speculative.  Finally, 
whether Congress can abrogate otherwise recognized privi-
leges in the course of impeachment proceedings may well 
constitute a nonjusticiable political question.  See (Walter) 
Nixon, 506 U.S. at 236.

     The Supreme Court's recognition in United States v. Nixon 
of a qualified privilege for executive communications severely 
undercuts the argument of the Office of the President regard-

__________
     11  Contrary to the Office of the President's suggestion, this is 
not a novel concern stemming from the Ethics in Government Act.  
During initial discussions with the Watergate Special Prosecutor, 
"[James] St. Clair was primarily concerned that evidence produced 
for the grand jury not subsequently be provided by [the Special 
Prosecutor] to the House Judiciary Committee for use in its im-
peachment inquiry."  Watergate Report 104-05.  The Special 
Prosecutor eventually asked the grand jury to transmit an "eviden-
tiary report" to the House Committee considering President Nix-
on's impeachment.  Id. at 143.

     12  The Office of the President cites no authority for the proposi-
tion that communications between White House Counsel and the 
President would be absolutely privileged in congressional proceed-
ings, but rather merely suggests that they "should" be.


ing the scope of the government attorney-client privilege.  A 
President often has private conversations with his Vice Presi-
dent or his Cabinet Secretaries or other members of the 
Administration who are not lawyers or who are lawyers, but 
are not providing legal services.  The advice these officials 
give the President is of vital importance to the security and 
prosperity of the nation, and to the President's discharge of 
his constitutional duties.  Yet upon a proper showing, such 
conversations must be revealed in federal criminal proceed-
ings.  See Nixon, 418 U.S. at 713;  In re Sealed Case (Espy), 
121 F.3d at 745.  Only a certain conceit among those admit-
ted to the bar could explain why legal advice should be on a 
higher plane than advice about policy, or politics, or why a 
President's conversation with the most junior lawyer in the 
White House Counsel's Office is deserving of more protection 
from disclosure in a grand jury investigation than a Presi-
dent's discussions with his Vice President or a Cabinet Secre-
tary.  In short, we do not believe that lawyers are more 
important to the operations of government than all other 
officials, or that the advice lawyers render is more crucial to 
the functioning of the Presidency than the advice coming 
from all other quarters.

     The district court held that a government attorney-client 
privilege existed and was applicable to grand jury proceed-
ings, but could be overcome, as could an applicable executive 
privilege, upon a showing of need and unavailability else-
where by the Independent Counsel.  While we conclude that 
an attorney-client privilege may not be asserted by Lindsey 
to avoid responding to the grand jury if he possesses informa-
tion relating to possible criminal violations, he continues to be 
covered by the executive privilege to the same extent as the 
President's other advisers.  Our analysis, in addition to hav-
ing the advantages mentioned above, avoids the application of 
balancing tests to the attorney-client privilege--a practice 
recently criticized by the Supreme Court.  See Swidler & 
Berlin, 1998 WL 333019, at *6.

     In sum, it would be contrary to tradition, common under-
standing, and our governmental system for the attorney-
client privilege to attach to White House Counsel in the same 



manner as private counsel.  When government attorneys 
learn, through communications with their clients, of informa-
tion related to criminal misconduct, they may not rely on the 
government attorney-client privilege to shield such informa-
tion from disclosure to a grand jury.

                                    III. [[


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 

 

 

 

 

 



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 




 

 

 

 

 

 

 

 

 

 

 

 

 



 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

               ]].

                                     IV.


     Accordingly, for the reasons stated in this opinion, we 
affirm [[        ]].

     In accordance with the Supreme Court's expectation that 
"the Court of Appeals will proceed expeditiously to decide 
this case," Clinton, 118 S. Ct. at 2079, any petition for 
rehearing or suggestion for rehearing in banc shall be filed 
within seven days after the date of this decision.

                         It is so ordered.




     Tatel, Circuit Judge, dissenting from Part II and concur-
ring in part and dissenting in part from Part III. The 
attorney-client privilege protects confidential communication 
between clients and their lawyers, whether those lawyers 
work for the private sector or for government.  Although I 
have no doubt that government lawyers working in executive 
departments and agencies enjoy a reduced privilege in the 
face of grand jury subpoenas, I remain unconvinced that 
either "reason" or "experience" (the tools of Rule 501) justi-
fies this court's abrogation of the attorney-client privilege for 
lawyers serving the Presidency.  This court's far-reaching 
ruling, moreover, may have been unnecessary to give this 
grand jury access to Bruce Lindsey's communications with 
the President, for on this record it is not clear whether those 
communications involved official legal advice that would be 
protected by the attorney-client privilege.  Before limiting 
the attorney-client privilege not just for this President, but 
for all Presidents to come, the court should have first re-
manded this case to the district court to recall Lindsey to the 
grand jury to determine the precise nature of his communica-
tions with the President.

                                      I


     My colleagues and I have no disagreement concerning 
personal legal advice Lindsey may have given the President.  
We agree, and the White House concedes, that the official 
attorney-client privilege does not protect such communica-
tions, for as a White House employee Lindsey had no authori-
ty to provide such advice.  Nor do we disagree about political 
advice given to the President by advisers who happen to be 
lawyers.  Such advice is protected, if at all, by the executive 
privilege alone.  Our disagreement centers solely on whether 
a grand jury can pierce the attorney-client privilege with 
respect to official legal advice that the Office of White House 
Counsel gives a sitting President. 

     One of the oldest privileges at common law and " 'rooted in 
the imperative need for confidence and trust,' " Jaffee v. 
Redmond, 518 U.S. 1, 10 (1996) (quoting Trammel v. United 



States, 445 U.S. 40, 51 (1980)), the attorney-client privilege 
"encourage[s] 'full and frank communication between attor-
neys and their clients, and thereby promote[s] broader public 
interests in the observance of law and the administration of 
justice.' "   Swidler & Berlin v. United States, No. 97-1192, 
1998 WL 333019, at *3 (U.S. June 25, 1998) (quoting Upjohn 
Co. v. United States, 449 U.S. 383, 389 (1981)).  The privilege 
protects client confidences even in the face of grand jury 
subpoenas.  See id. at *2, *7.

     Government attorneys enjoy the attorney-client privilege in 
order to provide reliable legal advice to their governmental 
clients.  "Unless applicable law otherwise provides, the attor-
ney-client privilege extends to a communication of a govern-
mental organization ... and of an individual officer ... of a 
governmental organization."  Restatement (Third) of the 
Law Governing Lawyers ("Restatement") s 124 (Proposed 
Final Draft No. 1, 1996);  see also Proposed Fed. R. Evid. 
503(a)(1), reprinted in 56 F.R.D. 183, 235 (1972).  We have 
explained that where "the Government is dealing with its 
attorneys as would any private party seeking advice to pro-
tect personal interests, [it] needs the same assurance of 
confidentiality so it will not be deterred from full and frank 
communications with its counselors."  Coastal States Gas 
Corp. v. Department of Energy, 617 F.2d 854, 863 (D.C. Cir. 
1980);  see also Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C. 
Cir. 1997) ("Communications revealing ... client confidences 
[between IRS field personnel and IRS counsel regarding 
audit activity] ... are clearly covered by the attorney-client 
privilege....").

     This court now holds that for all government attorneys, 
including those advising a President, the attorney-client privi-
lege dissolves in the face of a grand jury subpoena.  Accord-
ing to the court, its new rule "avoids the application of 
balancing tests to the attorney-client privilege--a practice 
recently criticized by the Supreme Court."  Maj. Op. at 26.  
But whether a court abrogates the privilege by applying the 
balancing test rejected in Swidler, or by the rule the court 
adopts today, the chilling effect is precisely the same.  
Clients, in this case Presidents of the United States, will 


avoid confiding in their lawyers because they can never know 
whether the information they share, no matter how innocent, 
might some day become "pertinent to possible criminal viola-
tions," id. at 18.  Rarely will White House counsel possess 
cold, hard facts about presidential wrongdoing that would 
create a strong public interest in disclosure, yet the very 
possibility that the confidence will be breached will chill 
communications.  See Swidler, 1998 WL 333019, at *5-6.  As 
a result, Presidents may well shift their trust on all but the 
most routine legal matters from White House counsel, who 
undertake to serve the Presidency, to private counsel who 
represent its occupant.

     Unlike Jaffee, 518 U.S. at 10-11 (recognizing a federal 
psychotherapy privilege), and In re Sealed Case, No. 98-3069, 
1998 WL 370584, at *4 (D.C. Cir. July 7, 1998) (declining to 
recognize a protective function privilege for Secret Service 
agents), this case involves not the creation of a new privilege, 
but as in Swidler, the carving out of an exception to an 
already well-established privilege.  See Swidler, 1998 WL 
333019, at *6.  Denying that they are creating an exception, 
my colleagues say that they are "defining the particular 
contours of the government attorney-client privilege," Maj. 
Op. at 14, but no court has suggested that the attorney-client 
privilege must be extended client by client to each new 
governmental entity, proceeding by proceeding.  Rather, 
"[u]nless applicable law otherwise provides," Restatement 
s 124, the privilege applies to all attorneys and all clients, 
regardless of their identities or the nature of the proceeding, 
see Swidler, 1998 WL 333019, at *6 (finding no case authority 
for civil-criminal distinction).  The question before us, then, is 
whether either "reason" or "experience" (Fed. R. Evid. 501), 
calls for exempting the Presidency from the traditional 
attorney-client relationship that all clients enjoy with their 
lawyers.  See, e.g., Trammel, 445 U.S. at 48, 52 (curtailing 
spousal privilege based on majority trend in state law, the 
disappearance of "ancient" notions of the subordinate status 
of women, and the unpersuasiveness of arguments regarding 
privilege's effect on marital stability).



     As one of its reasons for abrogating the presidential 
attorney-client privilege, the court says that legal advice is no 
different from the advice a President receives from other 
advisers, advice protected only by executive privilege.  Maj. 
Op. at 25-26.  I think the court seriously underestimates the 
independent role and value of the attorney-client privilege.  
Unlike the executive privilege--a broad, constitutionally de-
rived privilege that protects frank debate between President 
and advisers, see United States v. Nixon, 418 U.S. 683, 708 
(1974);  In re Sealed Case, 121 F.3d 729, 742-46 (D.C. Cir. 
1997)--the narrower attorney-client privilege flows not from 
the Constitution, but from the common law, see Swidler, 1998 
WL 333019, at *7.  The attorney-client privilege does not 
protect general policy or political advice--even when given by 
lawyers--but only communications with lawyers "for the pur-
pose of obtaining legal assistance."  Restatement s 122.  Ne-
cessitated by the nature of the lawyer's function, the 
attorney-client privilege enables the lawyer as an officer of 
the court properly to advise the client, including facilitating 
compliance with the law.  See Upjohn, 449 U.S. at 389.  In 
other words, the unique protection the law affords a Presi-
dent's communications with White House counsel rests not, as 
my colleagues put it, on some "conceit" that "lawyers are 
more important to the operations of government than all 
other officials," Maj. Op. at 26, but rather on the special 
nature of legal advice, and its special need for confidentiality, 
as recognized by centuries of common law.  It therefore 
makes sense that the Presidency possesses both the attorney-
client and executive privileges, and that courts treat them 
differently.

     The court also cites 28 U.S.C. s 535(b).  Although that 
statute generally supports qualifying--though not abrogat-
ing--the attorney-client privilege for government attorneys 
working in executive departments and agencies, the court 
acknowledges, as the Attorney General has told us in her 
amicus brief, that section 535(b) does not apply to the Office 
of the President.  The court cites several statements, includ-
ing former White House Counsel Lloyd Cutler's speech to the 
New York Bar, the White House Travel Office Management 
Review, and the Administration's certiorari petition in In re 



Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir.), 
cert. denied, 117 S. Ct. 2482 (1997), indicating that White 
House lawyers comply with the spirit of section 535(b).  Maj. 
Op. at 19-20.  Nothing in those statements suggests, howev-
er, that their authors were referring to conversations between 
White House counsel and the President of the United States, 
i.e., that one presidential subordinate (White House counsel) 
would report a confidential conversation with a President to 
another presidential subordinate (the Attorney General).  
The court points to no other statutory basis for denying the 
President the benefit of the official privilege.  Although the 
Independent Counsel statute ensures independent, aggressive 
prosecution of wrongdoing, nothing in that statute disables a 
President from defending himself or otherwise indicates that 
Congress intended to deprive the Presidency of its official 
privileges.

     The court refers to actions of a few previous White House 
counsel:  Fred Buzhardt testified voluntarily before the Wa-
tergate grand jury;  Peter Wallison turned over his diaries to 
the Iran-Contra investigation;  and C. Boyden Gray and his 
deputy refused to be interviewed by that same Iran-Contra 
Independent Counsel.  See Maj. Op. at 20-21.  In my view, 
these limited and contradictory examples reveal nothing 
about the standard we should apply where, as here, a Presi-
dent of the United States actually invokes the attorney-client 
privilege in the face of a grand jury subpoena.

     Acknowledging the facial inapplicability of section 535(b) to 
the Office of the President, the court relies on the govern-
ment lawyer's oath of office for the proposition that White 
House counsel cannot have a traditional attorney-client rela-
tionship with the President.  But all lawyers, whether they 
work within the government or the private sector, take an 
oath to uphold the Constitution of the United States.  In 
order to practice before this court, for example, attorneys 
must promise to "demean [themselves] ... according to law 
... [and] support the Constitution of the United States."  
Application for Admission to Practice (U.S. Court of Appeals 
for the D.C. Circuit).  No one would suggest that this oath 



abrogates a client's privilege in the face of a grand jury 
subpoena.

     This court's opinion, moreover, nowhere accounts for the 
unique nature of the Presidency, its unique need for confiden-
tial legal advice, or the possible consequences of abrogating 
the attorney-client privilege for a President's ability to obtain 
such advice.  Elected, head of the Executive Branch, 
Commander-in-Chief, head of State, and removable only by 
impeachment, the President is not just "a part of the federal 
government, consisting of government employees doing gov-
ernment business."  Maj. Op. at 2.  As Justice Robert H. 
Jackson observed in the steel seizure case, the Presidency 
concentrates executive authority "in a single head in whose 
choice the whole Nation has a part, making him the focus of 
public hopes and expectations.  In drama, magnitude and 
finality his decisions so far overshadow any others that almost 
alone he fills the public eye and ear."  Youngstown Sheet & 
Tube Co. v. Sawyer, 343 U.S. 579, 653 (1952) (Jackson, J., 
concurring).  Echoing Justice Jackson three decades later, 
the Supreme Court emphasized in Nixon v. Fitzgerald, 457 
U.S. 731 (1982), that the President "occupies a unique position 
in the constitutional scheme," id. at 749, that we depend on 
the President for the "most sensitive and far-reaching deci-
sions entrusted to any official under our constitutional sys-
tem," id. at 752, and that the President's "unique status 
under the Constitution" distinguishes him from other execu-
tive branch officials, id. at 750.  The Attorney General, 
focusing on the President's "singular responsibilities," de-
scribes the Presidency's critical need for legal advice as 
follows:

     The Constitution vests the President with unique, and 
     uniquely consequential, powers and responsibilities.  The 
     Nation's "executive Power" is vested in him alone.  U.S. 
     Const. Art. II, s 1.  In addition to his significant and 
     diverse domestic and foreign affairs responsibilities, he is 
     specifically required to adhere to and follow the law, both 
     in his oath of office (Art. II, s 1, Cl. 8) and in the 
     requirement that "he shall take Care that the Laws be 



     faithfully executed."  Art. II, s 3.  To fulfill his manifold 
     duties and functions, the President must have access to 
     legal advice that is frank, fully informed, and confiden-
     tial.  Because of the magnitude of the Nation's interest 
     in facilitating the President's conduct of his office in 
     accordance with law, the President's pressing need for 
     effective legal advice knows no parallel in government.

Amicus Br. at 24.  By lumping the President together with 
tax collectors, passport application processors, and all other 
executive branch employees--even cabinet officers--the court 
bypasses the reasoned "case-by-case" analysis demanded by 
Rule 501, Jaffee, 518 U.S. at 8 (quoting S. Rep. No. 93-1277, 
at 13 (1974)).

     A President's need for confidential legal advice may 
"know[ ] no parallel in government" for another reason.  Be-
cause the Presidency is tied so tightly to the persona of its 
occupant, and because of what Fitzgerald referred to as the 
Presidency's increased "vulnerability," stemming from "the 
visibility of [the] office and the effect of [the President's] 
actions on countless people," Fitzgerald, 457 U.S. at 753, 
official matters--proper subjects for White House counsel 
consultation--often have personal implications for a Presi-
dent.  Since for any President the line between official and 
personal can be both elusive and difficult to discern, I think 
Presidents need their official attorney-client privilege to per-
mit frank discussion not only of innocuous, routine issues, but 
also sensitive, embarrassing, or even potentially criminal top-
ics.

     The need for the official presidential attorney-client privi-
lege seems particularly strong after Watergate which, while 
ushering in a new era of accountability and openness in the 
highest echelons of government, also increased the Presiden-
cy's vulnerability.  Aggressive press and congressional scruti-
ny, the personalization of politics, and the enactment of the 
Independent Counsel statute, Pub. L. No. 95-521, Tit. VI, 92 
Stat. 1824, 1867 (1978) (codified as amended at 28 U.S.C. 
ss 591-599 (1994))--which triggers appointment of an Inde-
pendent Counsel based on no more than the existence of 
"reasonable grounds to believe that further investigation is 
warranted," 28 U.S.C. s 592(c)(1)(A)--have combined to 


make the Supreme Court's fear that Presidents have become 
easy "target[s]," Fitzgerald, 457 U.S. at 753, truer than ever.  
No President can navigate the treacherous waters of post-
Watergate government, make controversial official legal deci-
sions, decide whether to invoke official privileges, or even 
know when he might need private counsel, without confiden-
tial legal advice.  Because of the Presidency's enormous 
responsibilities, moreover, the nation has compelling reasons 
to ensure that Presidents are well defended against false or 
frivolous accusations that could interfere with their duties.  
The nation has equally compelling reasons for ensuring that 
Presidents are well advised on whether charges are serious 
enough to warrant private counsel.  I doubt that White 
House counsel can perform any of these functions without the 
candor made possible by the attorney-client privilege.  As I 
said at the outset, weakening the privilege may well cause 
Presidents to shift their trust from White House lawyers who 
have undertaken to serve the Presidency, to private lawyers 
who have not.

     Preserving the official presidential attorney-client privilege 
would not place the President above the law, as the Indepen-
dent Counsel implies.  To begin with, by enabling clients--
including Presidents--to be candid with their lawyers and 
lawyers to advise clients confidentially, the attorney-client 
privilege promotes compliance with the law.  See Upjohn, 449 
U.S. at 389.  Independent Counsels, moreover, have powerful 
weapons to combat abuses of the attorney-client privilege.  If 
evidence suggested that a President used White House coun-
sel to further a crime, the crime-fraud exception would abro-
gate the privilege.  See United States v. Zolin, 491 U.S. 554, 
562-63 (1989).  If an Independent Counsel had evidence that 
White House counsel's status as an attorney was used to 
protect non-legal materials from disclosure, those materials 
would not be protected.  See State v. Philip Morris Inc., No. 
C1-94-8565, 1998 WL 257214, at *7 (Minn. Dist. Ct. Mar. 7, 
1998) (releasing documents as penalty for bad faith claim of 
privilege).  "The privilege takes flight," Justice Benjamin 
Cardozo said, "if the [attorney-client] relation is abused."  
Clark v. United States, 289 U.S. 1, 15 (1933).  Or if an 



Independent Counsel presented evidence that a White House 
counsel committed a crime, a grand jury could indict that 
lawyer.  See George Lardner, Jr., Dean Guilty in Cover-Up:  
Nixon Ex-Aide Pleads to Count of Conspiracy, Wash. Post, 
Oct. 20, 1973, at A1.  This Independent Counsel has never 
alleged that any of these abuses occurred.

     To be sure, a properly exercised attorney-client privilege 
may deny a grand jury access to information, see Swidler, 
1998 WL 333019, at *6 (justifying the burden placed on the 
truth-seeking function by the privilege), but Presidents re-
main accountable in other ways, see Fitzgerald, 457 U.S. at 
757 (checks on Presidential action include impeachment, press 
scrutiny, congressional oversight, need to maintain prestige, 
and concern for historical stature).  An Independent Counsel, 
moreover, can always report to Congress that a President has 
denied critical information to a grand jury.  See 28 U.S.C. 
s 595(a)(2), (c).  If the President continues to exercise his 
attorney-client privilege in the face of a congressional subpoe-
na, and if Congress believes that the President has committed 
"high Crimes and Misdemeanors," U.S. Const. art. II, s 4, 
Congress can always consider impeachment.  See H. Rep. No. 
93-1305, at 4, 187-213 (1974) (recommending impeachment of 
President Nixon based on his refusal to turn over information 
in response to congressional subpoenas).

                                      II


     During Lindsey's several grand jury appearances he in-
voked both executive and attorney-client privileges, often with 
respect to the same questions.  Now that the White House 
has dropped the executive privilege issue, much of that 
information may be available to the Independent Counsel and 
we have no way of knowing which questions, if any, Lindsey 
would continue to decline to answer.  Even more fundamen-
tal, Lindsey's affidavit, [[  ]] and the affidavit of White 
House Counsel Charles F.C. Ruff suggest that the communi-
cations between Lindsey and the President regarding the 
Monica Lewinsky and Paula Jones matters may have involved 
political and policy discussions, not legal advice.  To be sure, 


the affidavits [[       ]] refer to advice about legal 
topics, such as invoking privileges and preparing for impeach-
ment.  But nowhere do they demonstrate that Lindsey ren-
dered that advice in his capacity as a lawyer, i.e., that "the 
lawyer's professional skill and training would have value in 
the matter."  Restatement s 122 cmt. b.  A conversation is 
not privileged merely because the President asked Lindsey a 
question about a nominally legal matter or in his capacity as 
White House Counsel staff.  For example, if Lindsey advised 
the President about the political implications of invoking 
executive privilege, that communication would not be privi-
leged;  if he discussed the availability of the privilege as a 
legal matter, the conversation would be protected.

     Distinguishing between Lindsey's legal and non-legal ad-
vice becomes even more difficult because not only does Lind-
sey wear two hats, one legal (Deputy White House Counsel) 
and one non-legal (Special Assistant to the President), but the 
Office of White House Counsel has historically performed 
many non-legal functions, such as giving policy advice, writing 
speeches, and performing various political tasks.  See Ste-
phen Hess, Organizing the Presidency 36, 43, 84 (1988);  Lloyd 
N. Cutler, The Role of the Counsel to the President of the 
United States, 35 Record of the Association of the Bar of the 
City of New York 470, 472-76 (1980);  Jeremy Rabkin, At the 
President's Side:  The Role of the White House Counsel in 
Constitutional Policy, Law & Contemp. Probs., Autumn 1993, 
at 63, 65-76.  When an advisor serves dual roles, the party 
invoking the privilege bears a particularly heavy burden of 
demonstrating that the services provided were in fact legal.  
See, e.g., Texaco Puerto Rico, Inc. v. Department of Consum-
er Affairs, 60 F.3d 867, 884 (1st Cir. 1995) (where agency 
"delegated policymaking authority to its outside counsel to 
such an extent that counsel ceased to function as lawyers and 
began to function as regulators," it could not invoke attorney-
client privilege);  Restatement s 122 cmt. c (whether privi-
lege applies to lawyer acting in dual roles depends upon 
circumstances);  cf. In re Sealed Case, 121 F.3d at 752 (with 
respect to " 'dual hat' presidential advisors, the government 



bears the burden of proving that the communications" are 
covered by the executive privilege).

     Accordingly, before abrogating the official attorney-client 
privilege for all future Presidents, this court should have 
remanded to the district court to allow the Independent 
Counsel to recall Lindsey to the grand jury to determine 
whether, with respect to each question that he declines to 
answer, he can demonstrate the elements of the attorney-
client privilege, namely that each communication was made 
between privileged persons in confidence "for the purpose of 
obtaining or providing legal assistance for the client," Re-
statement s 118.  See United States v. Kovel, 296 F.2d 918, 
923 (2nd Cir. 1961) (remanding to permit accountant witness 
to offer factual support for assertion that communications 
were made in pursuit of legal advice).  If Lindsey failed to 
meet this burden, that would end the matter, leaving for 
another day the difficult question of presidential attorney-
client privilege, with its consequences for the functioning of 
the Presidency, as well as its potential implications for possi-
ble impeachment proceedings (implications we have hardly 
begun to consider).  See Maj. Op. at 23-25;  Office of the 
President Br. at 26-29;  Office of the Independent Counsel 
Br. at 35;  cf. Amicus Br. at 34-37.  On the other hand, if 
Lindsey demonstrated that his communications involved offi-
cial legal advice, the district court could use the remand to 
enrich the record by, for example, inviting former White 
House counsel to describe the nature of the relationship 
between Presidents and White House counsel generally and 
the role of the attorney-client privilege in particular.  This 
would create an infinitely more useful record for us, or 
eventually the Supreme Court, to determine whether reason 
or experience justifies any change in the official presidential 
attorney-client privilege, and if so, whether the privilege can 
be modified without threatening a President's ability to "take 
Care that the Laws be faithfully executed."  U.S. Const. art.  
II, s 3.  See Swidler, 1998 WL 333019, at *6 n.4 (noting lack 
of empirical evidence in support of limiting the privilege);  
Jaffee, 518 U.S. at 16 & n.16 (relying on amicus briefs citing 
psychology and social work studies);  Trammel, 445 U.S. at 



48, 52 (relying on historical developments regarding the role 
of women in marriage).

     I do not consider the Supreme Court's expectation that we 
proceed expeditiously to be inconsistent with our obligation to 
engage in fully reasoned and informed decision-making.  The 
importance to the Presidency of effective legal advice re-
quires no less.  Moreover, according to the Independent 
Counsel, the grand jury is exploring whether obstruction of 
justice, perjury, witness intimidation, and other crimes were 
committed in January 1998.  See 18 U.S.C. s 3282 (establish-
ing five-year statute of limitations for non-capital federal 
crimes).  We thus have time to determine whether we need to 
resolve this important question and, if so, to ensure that we 
do so on the basis of a fuller, more useful record.  If the 
Independent Counsel needs to report to Congress more expe-
ditiously, he is free to do so.

                                   III  [[


 

 

 

 

 

 

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