The Honorable Richard G. Kopf, United States District Judge 1

for the District of Nebraska, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-4108

___________

*

In re: Grand Jury Subpoena * Appeal from the United States

Duces Tecum * District Court for the

* Eastern District of Arkansas.

*

___________

 Submitted: February 13, 1997

 Filed: April 9, 1997

 Amended and Unsealed: May 2, 1997

___________

Before BOWMAN and WOLLMAN, Circuit Judges, and KOPF, District Judge. 1

___________

BOWMAN, Circuit Judge.

The Office of Independent Counsel (OIC) appeals from an order of the

District Court denying the OIC’s motion to compel the production of

documents subpoenaed by a federal grand jury. We reverse and remand.
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I.

The task assigned to Independent Counsel Kenneth W. Starr is to

investigate and prosecute matters “relating in any way to James B.

McDougal’s, President William Jefferson Clinton’s, or Mrs. Hillary Rodham

Clinton’s relationships with Madison Guaranty Savings & Loan Association,

Whitewater Development Corporation, or Capital Management Services, Inc.”

In re Madison Guar. Sav. & Loan Ass’n, Div. No. 94-1, Order at 1-2 (D.C.

Cir. Sp. Div. Aug. 5, 1994). Mr. Starr also is charged with the duty of

pursuing evidence of other violations of the law developed during and

connected with or arising out of his primary investigation, known generally

as “Whitewater.” See id. See generally United States v. Tucker, 78 F.3d

1313 (8th Cir.), cert. denied, 117 S. Ct. 76 (1996).

On June 21, 1996, as part of its investigation, the OIC directed to

the White House a grand jury subpoena that required production of “[a]ll

documents created during meetings attended by any attorney from the Office

of Counsel to the President and Hillary Rodham Clinton (regardless whether

any other person was present)” pertaining to several Whitewater-related

subjects. Subpoena Rider at 1. The White House identified nine sets of

notes responsive to the subpoena but refused to produce them, citing

executive privilege, attorney-client privilege, and the attorney work

product doctrine.

On August 19, 1996, the OIC filed a motion before the District Court

to compel production of two of the nine sets of documents identified by the

White House. The first set of documents comprises notes taken by Associate

Counsel to the President Miriam Nemetz on July 11, 1995, at a meeting

attended by Mrs. Clinton, 
-3-

Special Counsel to the President Jane Sherburne, and Mrs. Clinton’s

personal attorney, David Kendall. The subject of this meeting was Mrs.

Clinton’s activities following the death of Deputy Counsel to the President

Vincent W. Foster, Jr. The documents in the second collection are notes

taken by Ms. Sherburne on January 26, 1996, during meetings attended by

Mrs. Clinton, Mr. Kendall, Nicole Seligman (a partner of Mr. Kendall’s),

and, at times, John Quinn, Counsel to the President. These meetings, which

took place during breaks in and immediately after Mrs. Clinton’s testimony

before a federal grand jury in Washington, D.C., concerned primarily the

discovery of certain billing records from the Rose Law Firm in the

residence area of the White House.

The White House abandoned its claim of executive privilege before the

District Court, relying solely on the attorney-client privilege and the

work product doctrine. Mrs. Clinton also entered a personal appearance

through counsel in the District Court and asserted her personal attorneyclient privilege. The District Court found it unnecessary to reach the

broadest question presented by the OIC, whether a federal governmental

entity may assert the attorney-client privilege or the work product

doctrine in response to a subpoena by a federal grand jury. Instead, the

court concluded that because Mrs. Clinton and the White House had a

“genuine and reasonable (whether or not mistaken)” belief that the

conversations at issue were privileged, the attorney-client privilege

applied. Memorandum Opinion and Order at 20. In addition, the court held

that the work product doctrine prevented disclosure of the notes to the

grand jury. See id. at 22.

The OIC appealed, and we granted expedited review. Mrs. Clinton

moved to intervene formally, and we granted her motion. The case was

submitted following oral arguments in a closed session. The District Court

did not find it necessary to examine 
We wish to commend the parties on the quality of their 2

briefs and oral arguments despite the expedited appeal process.

-4-

the disputed materials in camera, see id. at 18 n.10, and neither do we.2

At the request of the White House, and in order to preserve the

secrecy of the grand jury’s proceedings, we filed our opinion under seal

on April 9, 1997, intending to publish a redacted opinion shortly

thereafter. Since we filed our opinion, however, press reports have

related some of the substance of our decision. Believing that these

disclosures have portrayed the White House in an unfairly negative light,

the White House and Mrs. Clinton moved this Court to publish its opinion

and to unseal the briefs and appendices filed in this Court, and the OIC

joined in the motion. The motion is granted. Accordingly, this opinion,

as amended, together with Judge Kopf's dissent, is released for

publication, and the briefs and appendices are ordered unsealed.

II.

We first consider our jurisdiction to entertain this appeal. An

order of a district court denying a motion to quash a grand jury subpoena--

that is, an order requiring compliance with the subpoena--is not

immediately appealable. See Cobbledick v. United States, 309 U.S. 323,

327-28 (1940). But see United States v. Nixon, 418 U.S. 683, 691-92 (1974)

(determining that, in unique context of case, President could appeal

without first being cited for contempt). This case presents the opposite

situation: an order refusing to require compliance with a subpoena. An

order granting a motion to quash a subpoena is an appealable order, either

under 18 U.S.C. § 3731 (1994) (permitting government to appeal from an

order “excluding evidence . . . in a criminal 
-5-

proceeding”), or under 28 U.S.C. § 1291 (1994) (permitting appeals from

“all final decisions of the district courts”). See In re Grand Jury

Subpoena (Kent), 646 F.2d 963, 967-68 (5th Cir. Unit B June 1981); In re

Grand Jury Empanelled Feb. 14, 1978 (Colucci), 597 F.2d 851, 854-58 (3d

Cir. 1979). It makes no practical difference that the instant case

involves the denial of a motion to enforce a subpoena rather than the grant

of a motion to quash a subpoena. We conclude that we have jurisdiction

over this appeal.

Although this case is a dispute between two entities of the federal

government, i.e., the White House and the OIC, it presents a justiciable

controversy. See Nixon, 418 U.S. at 697.

III.

We will address first the issue that the District Court found it

unnecessary to decide: whether an entity of the federal government may use

the attorney-client privilege to avoid complying with a subpoena by a

federal grand jury. Before we confront the merits of this question,

however, we believe it is important to identify what is not at issue in

this case. The OIC does not seek to invade the attorney-client

relationship existing between Mrs. Clinton, in her personal capacity, and

Mr. Kendall, her personal lawyer. The privilege set up by the White House

is strictly a governmental privilege, with the White House (or the Office

of the President, alternatively) as client and Ms. Sherburne and Ms. Nemetz

as attorneys. Accordingly, the White House is the real party in interest

in this case, although Mrs. Clinton presents arguments similar to those of

the White House in her capacity as an intervenor.
-6-

The discussion that follows can be summed up rather simply. We need

not decide whether a governmental attorney-client privilege exists in other

contexts, for it is enough to conclude that even if it does, the White

House may not use the privilege to withhold potentially relevant

information from a federal grand jury.

A.

“[T]he privilege of a witness, person, government, State, or

political subdivision thereof [is] 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. We must therefore

apply the federal common law of attorney-client privilege to the situation

presented by this case. See In re Bieter Co., 16 F.3d 929, 935 (8th Cir.

1994).

The OIC and the White House have taken strikingly different

rhetorical approaches to the question presented here. The OIC argues that

recognizing an attorney-client privilege in these circumstances would be

tantamount to establishing a new privilege, which courts ordinarily

undertake with great reluctance. The White House, in contrast, argues that

the attorney-client privilege is already the best-established of the

common-law privileges and that, furthermore, it is an absolute privilege.

The White House is correct, of course, in its assertion that the attorneyclient privilege is the oldest known to the common law. See Upjohn Co. v.

United States, 449 U.S. 383, 389 (1981). But the lengthy roots of the

privilege do not necessarily mean that it must apply in this dispute within

the federal government, especially because the privilege has not previously

been so applied. Nor does the White House advance its case significantly

by arguing that the attorney-client privilege is absolute, in the sense

that it cannot be 
Judge Kopf’s dissent relies too heavily, we believe, on the 3

precise wording of Proposed Rule 503. Although we have found the

proposed rule accurate in other cases that have come before us,

see In re Bieter Co., 16 F.3d at 935, it bears repeating that we

are instructed by Rule 501 to interpret the attorney-client

privilege “in light of reason and experience” and not solely in

light of the rule promulgated by the Supreme Court in 1972. Even

the Court itself at times has interpreted privileges differently

from the rules it proposed. See Jaffee v. Redmond, 116 S. Ct.

1923, 1931 (1996) (concluding that psychotherapist-patient

privilege encompasses communications to social workers, contrary

to Proposed Rule 504); Trammel v. United States, 445 U.S. 40, 51-

53 (1980) (recognizing marital privilege entirely different from

Proposed Rule 505).

-7-

overcome by a showing of need. See, e.g., Admiral Ins. Co. v. United

States Dist. Court, 881 F.2d 1486, 1493-94 (9th Cir. 1989). This argument

merely begs the true question, whether a governmental attorney-client

privilege exists at all in the context of a federal criminal investigation.

We address this question by beginning with Proposed Federal Rule of

Evidence 503, which we have described as “a useful starting place” for an

examination of the federal common law of attorney-client privilege. In re

Bieter Co., 16 F.3d at 935. As promulgated by the Supreme Court in 1972,

Proposed Rule 503 would have defined “client” to include “a person, public

officer, or corporation, 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 makes it clear that “[t]he

definition of ‘client’ includes governmental bodies.” Id. advisory

committee’s note. But neither the proposed rule nor the commentary has

anything to say about the particular situation before us in this case; they

represent only the broad proposition that a governmental body may be a

client for purposes of the attorney-client privilege.3
The American Law Institute has approved the chapter of 4

Proposed Final Draft No. 1 of the Restatement governing the

attorney-client privilege and the work product doctrine. See 64

U.S.L.W. 2739 (May 28, 1996).

The White House correctly points out that a number of the 5

states adopting the Uniform Rules have omitted the limitation in

Rule 502(d)(6). See, e.g., Neb. Rev. Stat. § 27-503(4) (1995). 

These omissions, however, prove no more than does the lack of

specific language in Proposed Federal Rule 503.

-8-

Other compilations of the general law have taken similar approaches.

See Restatement (Third) of the Law Governing Lawyers § 124 (Proposed Final

Draft No. 1, 1996) [hereinafter Restatement] (“[T]he attorney-client

privilege extends to a communication of a governmental organization.”);4

Unif. R. Evid. 502(a)(1) (defining “client” in terms similar to Proposed

Fed. R. Evid. 503). Each of these authorities, however, expresses at least

some concern about applying the privilege broadly to governmental entities.

Uniform Rule 502 limits the governmental privilege to situations involving

a pending investigation or litigation and requires a finding by the court

that disclosure will “seriously impair” the agency’s pursuit of the

investigation or litigation. See Unif. R. Evid. 502(d)(6). Language in 5

the Restatement addresses even more directly the concerns relevant in the

instant case:

More particularized rules may be necessary where one agency of

government claims the privilege 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 § 124 cmt. b. We agree with this language from the Restatement

and accordingly look to the case law for further guidance.
-9-

The White House has located only two cases involving a clash between

a grand jury and a claim of governmental attorney-client privilege. In In

re Grand Jury Subpoenas Duces Tecum (Farber), 574 A.2d 449 (N.J. Super. Ct.

App. Div. 1989), a New Jersey intermediate appellate court considered two

subpoenas issued by a county grand jury to private lawyers who had been

retained to represent a county agency. The court concluded that “the

privilege is fully applicable to communications between a public body and

an attorney retained to represent it,” id. at 454, but reversed the lower

court’s order quashing the subpoenas because the attorneys should have been

required to appear before the grand jury and invoke the privilege in

response to specific questions, see id. at 458. In In re Grand Jury

Subpoena (Doe), 886 F.2d 135 (6th Cir. 1989), the Sixth Circuit considered

a subpoena issued by a federal grand jury to the city of Detroit. The

court vacated the district court’s finding that the city council was not

the client of the city’s corporation counsel but concluded that the

application of the attorney-client privilege depended on the

confidentiality of the communications, which in turn depended on the proper

application of the state open-meetings law. See id. at 138. The court

remanded the case to allow the district court to resolve that issue. See

id. at 139.

For several reasons, we do not find these cases particularly

persuasive. First, neither court actually applied a governmental attorneyclient privilege to block a grand jury’s investigation; both found it

necessary to remand for further proceedings. We hesitate to ignore

judicial pronouncements too readily as mere dicta, however, for we must

find guidance somewhere in the parties’ proffered authorities, none of

which is directly in point. Several significant factual distinctions

between the aforementioned cases and the case at bar are therefore also

relevant. The New Jersey case involved the interaction between a county

grand jury and a 
See Mead Data Cent., Inc. v. United States Dep’t of Air 6

Force, 566 F.2d 242, 252-53 (D.C. Cir. 1977); Covington & Burling

v. Food & Nutrition Serv., 744 F. Supp. 314, 323 (D.D.C. 1990);

Badran v. United States Dep’t of Justice, 652 F. Supp. 1437, 1440

(N.D. Ill. 1987); Green v. IRS, 556 F. Supp. 79, 85-86 (N.D. Ind.

1982), aff’d, 734 F.2d 18 (7th Cir. 1984) (table); cf. NLRB v.

Sears, Roebuck & Co., 421 U.S. 132, 154 (1975) (concluding that

work product doctrine applies in FOIA cases); Wright v. OSHA, 822

F.2d 642, 648 (7th Cir. 1987) (holding that FOIA exemption for

records compiled for law enforcement purposes incorporates

attorney-client privilege); Sacramento Newspaper Guild v.

Sacramento County Bd. of Supervisors, 69 Cal. Rptr. 480, 489

(Cal. Ct. App. 1968) (noting, in action under state public

meeting act, that California cases have assumed that public

-10-

county agency, a subject which is undoubtedly of considerable importance

to the state of New Jersey but does not bear directly on the relationship

of a federal grand jury to a federal entity. In addition, that case

involved private attorneys hired as special counsel to the county agency,

and the court recognized that the private lawyers were not subject to a

state statute requiring all public employees to testify before any grand

jury in exchange for use immunity. See In re Grand Jury (Farber), 574 A.2d

at 455. It is, of course, impossible for us to determine how the New

Jersey court would have harmonized this statute with the asserted

governmental attorney-client privilege if the attorney involved had been

a public employee. The Sixth Circuit case, involving a standoff between

a federal grand jury and a city government, implicates potentially serious

federalism concerns not present in the case before us. The court’s brief

opinion is also rather unpersuasive legally, as it contains no

acknowledgment that to extend the privilege to a governmental body where

individuals within the government are being scrutinized by a grand jury for

criminal activity poses anything but a routine concern. (The court cited

only two privilege cases, neither of which had anything to do with

government lawyers.)

Moving somewhat further afield, the White House cites a number of

cases in which courts have applied a governmental attorney-client privilege

in civil actions. These cases, all of which involved either the sui

generis jurisprudence of the Freedom of Information Act (5 U.S.C. § 552

(1994)) or a situation in which 6
agencies may assert privilege). But cf. City of N. Miami v.

Miami Herald Publ’g Co., 468 So. 2d 218, 220 (Fla. 1985) (ruling

that state public records act does not exempt communications

between attorneys and governmental clients, except during

pendency of litigation); News & Observer Publ’g Co. v. Poole, 412

S.E.2d 7, 17 (N.C. 1992) (holding that state public records act

exempts only written communications from attorney to governmental

client, and only for three years).

See Scott Paper Co. v. United States, 943 F. Supp. 489, 7

498-500 (E.D. Pa.) (Magistrate Judge) (dicta), aff’d, 943 F.

Supp. 501 (E.D. Pa. 1996); Donovan v. Teamsters Union Local 25,

103 F.R.D. 550, 552-53 (D. Mass. 1984); SEC v. World-Wide Coin

Investments, Ltd., 92 F.R.D. 65, 66-67 (N.D. Ga. 1981); Jupiter

Painting Contracting Co. v. United States, 87 F.R.D. 593, 598

(E.D. Pa. 1980); Thill Sec. Corp. v. New York Stock Exch., 57

F.R.D. 133, 138-39 (E.D. Wis. 1972); Detroit Screwmatic Co. v.

United States, 49 F.R.D. 77, 78 (S.D.N.Y. 1970); United States v.

Anderson, 34 F.R.D. 518, 522-23 (D. Colo. 1963); cf. In re Allen,

106 F.3d 582, 600 n.8 (4th Cir. 1997) (noting that private party

did not challenge applicability of privilege to government

agency); Mitzner v. Sobol, 136 F.R.D. 359, 360-62 (S.D.N.Y. 1991)

(suggesting that state agency may assert privilege) (dicta);

Bruce v. Christian, 113 F.R.D. 554, 560 (S.D.N.Y. 1986) (holding

that city agency may assert privilege); State ex rel. Babbitt v.

Arnold, 548 P.2d 426, 428 (Ariz. Ct. App. 1976) (holding that

county may assert privilege).

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the party seeking information was a private litigant adversarial to the

government, are not particularly persuasive in the circumstances of this 7

case. Even if we were to conclude that the governmental attorney-client

privilege ordinarily applies in civil litigation pitting the federal

government against private parties, a question that we need not and do not

decide, we believe the criminal context of the instant case, in which an

entity of the federal government seeks to withhold information from a

federal criminal investigation, presents a rather different issue. See
-12-

Nixon, 418 U.S. at 712 n.19 (suggesting that executive privilege may apply

differently in criminal and civil cases); Cervantes v. Time, Inc., 464 F.2d

986, 992-93 n.9 (8th Cir. 1972) (recognizing that reporter’s privilege may

apply differently in criminal and civil cases), cert. denied, 409 U.S. 1125

(1973); Zerilli v. Smith, 656 F.2d 705, 711-12 (D.C. Cir. 1981) (same).

Lacking persuasive direction in the case law, we turn to general

principles.

“For more than three centuries it has now been recognized as a

fundamental maxim that the public (in the words sanctioned by

Lord Hardwicke) has a right to every man’s evidence. When we

come to examine the various claims of exemption, we start with

the primary assumption that there is a general duty to give

what testimony one is capable of giving, and that any

exemptions which may exist are distinctly exceptional, being so

many derogations from a positive general rule.”

United States v. Bryan, 339 U.S. 323, 331 (1950) (quoting 8 J. Wigmore,

Evidence § 2192 (3d ed. 1940)). Privileges, as exceptions to the general

rule, “are not lightly created nor expansively construed, for they are in

derogation of the search for truth.” Nixon, 418 U.S. at 710. It is

appropriate to recognize a privilege “‘only to the very limited extent that

permitting a refusal to testify or excluding relevant evidence has a public

good transcending the normally predominant principle of utilizing all

rational means for ascertaining truth.’” Trammel v. United States, 445

U.S. 40, 50 (1980) (quoting Elkins v. United States, 364 U.S. 206, 234

(1960) (Frankfurter, J., dissenting)).

Federal common law recognizes a privilege only in rare situations.

See, e.g., Jaffee v. Redmond, 116 S. Ct. 1923, 1931 (1996) (adopting

psychotherapist-patient privilege); University of Pa. v. EEOC, 493 U.S.

182, 189 (1990) (rejecting academic peer 
Some courts have interpreted Branzburg as establishing a 8

qualified news reporter’s privilege. See Shoen v. Shoen, 5 F.3d

1289, 1292 & n.5 (9th Cir. 1993). But see In re Grand Jury

Proceedings (Storer), 810 F.2d 580, 583-86 (6th Cir. 1987)

(rejecting this theory). Although the Ninth Circuit in Shoen

cited our opinion in Cervantes for support, we believe this

question is an open one in this Circuit.

The White House does suggest that the OIC has not shown a 9

“demonstrated, specific need” for the materials subpoenaed by the

grand jury, citing Nixon, 418 U.S. at 713. We doubt that this

language from Nixon constitutes the proper need threshold even on

the facts of that case, as it appears in a general discussion,

rather than in the Court’s specific analysis of Fed. R. Crim. P.

17(c). See id. at 700. In a grand jury case, the burden is on

the subpoenaed party to demonstrate “that there is no reasonable

possibility that the category of materials the Government seeks

will produce information relevant to the general subject of the

grand jury’s investigation.” United States v. R. Enters., Inc.,

498 U.S. 292, 301 (1991); see also In re Grand Jury Proceedings

(Cheetham), 791 F.2d 663, 665-66 (8th Cir. 1986) (recognizing

-13-

review privilege); United States v. Arthur Young & Co., 465 U.S. 805, 817

(1984) (rejecting work product immunity for accountants); Upjohn, 449 U.S.

at 390, 397 (assuming, and effectively deciding, that corporation may

assert attorney-client privilege); United States v. Gillock, 445 U.S. 360,

373 (1980) (rejecting speech-or-debate privilege for state legislators);

Trammel, 445 U.S. at 51-53 (rejecting privilege against adverse spousal

testimony, but continuing to recognize privilege for confidential marital

communications); Nixon, 418 U.S. at 705-13 (recognizing qualified executive

privilege); Couch v. United States, 409 U.S. 322, 335 (1973) (rejecting

accountant-client privilege); Branzburg v. Hayes, 408 U.S. 665, 690-91

(1972) (rejecting news reporter’s privilege); In re Grand Jury (Virgin

8

Islands), 103 F.3d 1140, 1146-47 (3d Cir. 1997) (rejecting, like eight

other circuits, parent-child privilege); Petersen v. Douglas County Bank

& Trust Co., 967 F.2d 1186, 1188 (8th Cir. 1992) (rejecting insurer-insured

confidentiality privilege); United States v. Holmes, 594 F.2d 1167, 1171

(8th Cir.) (rejecting probation officer-parolee privilege), cert. denied,

444 U.S. 873 (1979).

The White House does not dispute that a grand jury has broad

investigatory powers. As the Supreme Court has recognized, the 9
that no showing of need for information is required). The White

House’s own descriptions of the notes at issue in this case are

sufficient to demonstrate their relevance to the OIC’s

investigation.

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principle that the public is entitled to “every man’s evidence” is

“particularly applicable to grand jury proceedings.” Branzburg, 408 U.S.

at 688. “[O]ur historic commitment to the rule of law,” and particularly

to the twin goals of criminal justice “‘that guilt shall not escape or

innocence suffer,’” are strong factors weighing against the applicability

of a privilege. Nixon, 418 U.S. at 708-09 (citation omitted).

In essence, the parties’ arguments center on two cases, neither of

which is directly analogous to this case, but each of which has relevance

to our decision: Nixon and Upjohn. In Nixon, a special prosecutor

directed a subpoena duces tecum to President Nixon, seeking tapes and other

materials for use in the criminal trial of seven defendants, including

former White House officials. The President refused to comply with the

subpoena, claiming executive privilege. After concluding that the special

prosecutor had made the showing required by Federal Rule of Criminal

Procedure 17(c) for a trial subpoena, see id. at 700, the Supreme Court

considered the President’s claim of privilege. The Court recognized that

the need for confidential presidential communication “can be said to derive

from the supremacy of each branch within its own assigned area of

constitutional duties,” id. at 705, and that the privilege for presidential

communications “is fundamental to the operation of Government and

inextricably rooted 
-15-

in the separation of powers under the Constitution,” id. at 708. Despite

the strong constitutional foundations of the privilege, however, the Court

concluded that it had to give way to the special prosecutor’s subpoena:

A President’s acknowledged need for confidentiality in the

communications of his office is general in nature, whereas the

constitutional need for production of relevant evidence in a

criminal proceeding is specific and central to the fair

adjudication of a particular criminal case in the

administration of justice. Without access to specific facts a

criminal prosecution may be totally frustrated. The

President’s broad interest in confidentiality of communications

will not be vitiated by disclosure of a limited number of

conversations preliminarily shown to have some bearing on the

pending criminal cases.

Id. at 712-13.

The OIC argues that under the logic of Nixon, the White House’s claim

of privilege must give way here, for if the governmental attorney-client

privilege exists at all, it is certainly not constitutionally based. It

is true, as the White House responds, that the President did not assert an

attorney-client privilege in Nixon, and so the case is not directly

controlling. We agree with the OIC, however, that Nixon is indicative of

the general principle that the government’s need for confidentiality may

be subordinated to the needs of the government’s own criminal justice

processes.

The White House counters by pointing out that Nixon itself recognized

the importance of common-law privileges, including the attorney-client

privilege. See id. at 709-10. No one, the White House argues, would

suppose that the special prosecutor could compel the production of notes

made by a private lawyer concerning a conversation with a private client

about even the most routine 
-16-

traffic ticket. Why then, the argument continues, should the benefit of

this important privilege not be available to the White House?

Our discussion of the White House’s primary argument, revolving

around Upjohn, should demonstrate why we believe the private-attorney

analogy is inapposite. The White House proffers Upjohn as emblematic of

the wide sweep of the attorney-client privilege, and we agree with that

characterization, to a point. In Upjohn, the IRS attempted to subpoena

records of an internal investigation conducted by Upjohn’s general counsel.

The court of appeals rejected Upjohn’s claim of privilege to the extent

that the communications at issue involved lower-level employees outside the

so-called “control group.” The Supreme Court rejected the “control group”

test as unnecessarily restrictive, recognizing that if the attorney-client

privilege is to have any value, it must encompass communications between

attorneys and lower-level employees possessing relevant information:

In the case of the individual client the provider of

information and the person who acts on the lawyer’s advice are

one and the same. In the corporate context, however, it will

frequently be employees beyond the control group as defined by

the court below--‘officers and agents . . . responsible for

directing [the company’s] actions in response to legal advice’-

-who will possess the information needed by the corporation’s

lawyers. Middle-level--and indeed lower-level--employees can,

by actions within the scope of their employment, embroil the

corporation in serious legal difficulties, and it is only

natural that these employees would have the relevant

information needed by corporate counsel if he is adequately to

advise the client with respect to such actual or potential

difficulties.

Upjohn, 449 U.S. at 391 (alterations by Supreme Court). The Court did not

specify the precise extent of the privilege but specifically rejected the

“control group” test. Id. at 396-97.
-17-

As the White House points out, Upjohn contains strong language about

the importance of the attorney-client privilege in encouraging the full and

frank presentation of legal advice to corporations, which helps to insure

that corporations will act within the law. See id. at 389, 392. And the

Court recognized that “if the purpose of the attorney-client privilege is

to be served, the attorney and client must be able to predict with some

degree of certainty whether particular discussions will be protected.” Id.

at 393. Nevertheless, we believe that important differences between the

government and nongovernmental organizations such as business corporations

weigh against the application of the principles of Upjohn in this case.

First, the actions of White House personnel, whatever their capacity,

cannot expose the White House as an entity to criminal liability. (No one

suggests that any of the conduct under investigation by the OIC could

expose the White House to civil liability.) A corporation, in contrast,

may be subject to both civil and criminal liability for the actions of its

agents, and corporate attorneys therefore have a compelling interest in

ferreting out any misconduct by employees. The White House simply has no

such interest with respect to the actions of Mrs. Clinton.

We also find it significant that executive branch employees,

including attorneys, are under a statutory duty to report criminal

wrongdoing by other employees to the Attorney General. See 28 U.S.C.

§ 535(b) (1994). Even more importantly, however, the general duty of

public service calls upon government employees and agencies to favor

disclosure over concealment. The difference between the public interest

and the private interest is perhaps, by itself, reason enough to find

Upjohn unpersuasive in this case. The importance of the public interest

in questions of disclosure versus privilege is not unique to this case, for

it was a key 
Judge Kopf cites several opinions of the Office of Legal 10

Counsel for support. See post at 41-45. We find each of these

opinions unpersuasive in the context of this case. Theodore

Olson’s 1982 opinion concerning the confidentiality of

communications between the President and the Attorney General

relies significantly on Freedom of Information Act cases and

Upjohn, which we believe are not helpful to the White House in

this case, and does not purport to address the viability of the

privilege in the face of a grand jury subpoena. See Memorandum

for the Attorney General re: Confidentiality of the Attorney

General’s Communications in Counseling the President, 6 Op. Off.

Legal Counsel 481, 490-97 (1982). Each of the other opinions

-18-

reason the Supreme Court rejected the concept of work product immunity for

accountants:

By certifying the public reports that collectively depict a

corporation’s financial status, the independent auditor assumes

a public responsibility transcending any employment

relationship with the client. The independent public

accountant performing this special function owes ultimate

allegiance to the corporation’s creditors and stockholders, as

well as to the investing public. This ‘public watchdog’

function demands that the accountant maintain total

independence from the client at all times and requires complete

fidelity to the public trust. To insulate from disclosure a

certified public accountant’s interpretations of the client’s

financial statements would be to ignore the significance of the

accountant’s role as a disinterested analyst charged with

public obligations.

Arthur Young, 465 U.S. at 817-18. The public responsibilities of the White

House are, of course, far greater than those of a private accountant

performing a service with public implications. We believe the strong

public interest in honest government and in exposing wrongdoing by public

officials would be ill-served by recognition of a governmental attorneyclient privilege applicable in criminal proceedings inquiring into the

actions of public officials. We also believe that to allow any part of the

federal government to use its in-house attorneys as a shield against the

production of information relevant to a federal criminal investigation

would represent a gross misuse of public assets. See also Jupiter

Painting, 87 F.R.D. at 598 (recognizing the “pernicious potential” of a

governmental attorney-client privilege “in a government top-heavy with

lawyers”).10
cited by the White House involves a government attorney

representing a government official sued in his or her individual

capacity in a Bivens action. In such a case, the government

attorney enters into a personal attorney-client relationship with

the individual defendant, and the usual privilege applies. See

28 C.F.R. § 50.15(a)(3) (1996). No such personal attorney-client

relationship exists between Mrs. Clinton and the White House

attorneys.

-19-

We recognize the White House’s concern that “[a]n uncertain

privilege, or one which purports to be certain but results in widely

varying applications by the courts, is little better than no privilege at

all.” Upjohn, 449 U.S. at 393. Our first response is that the White House

assumes that the attorney-client privilege is more predictable ex ante than

it actually is. A client discussing an issue with a lawyer cannot know,

for example, whether a bankruptcy trustee will later waive the privilege,

see Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 358

(1985), or whether the lawyer’s assistance will later become an issue in

a proceeding, see Restatement § 130(1), or whether the lawyer and client

will later become involved in a dispute, see Restatement § 133, any of

which may result in disclosure of the conversation. Even so, we believe

our holding in this case does not make the duties of government attorneys

significantly more difficult. Assuming arguendo that there is a

governmental attorney-client privilege in other circumstances,

confidentiality will suffer only in those situations that a grand jury

might later see fit to investigate. Because agencies and entities of the

government are not themselves subject to criminal liability, a government

attorney is free to discuss anything with a government official--except for
-20-

potential criminal wrongdoing by that official--without fearing later

revelation of the conversation. An official who fears he or she may have

violated the criminal law and wishes to speak with an attorney in

confidence should speak with a private attorney, not a government attorney.

Nor do we foresee any likely effect of our decision on the ability

of a government lawyer to advise an official who is contemplating a future

course of conduct. If the attorney explains the law accurately and the

official follows that advice, no harm can come from later disclosure of the

advice, which would be unlikely anyway. Like the Nixon Court, “we cannot

conclude that advisers will be moved to temper the candor of their remarks

by the infrequent occasions of disclosure because of the possibility that

such conversations will be called for in the context of a criminal

prosecution.” Nixon, 418 U.S. at 712. The White House’s “chilling effect”

argument is no more persuasive in this case than it was in Nixon.

B.

Before we can conclude that the White House may not use the attorneyclient privilege to thwart the grand jury’s subpoena, we must consider the

assertion, made by both the White House and Mrs. Clinton, that the presence

of Mr. Kendall, Mrs. Clinton’s private attorney, during her meetings with

the White House attorneys affects the calculus in this case. We disagree.

The White House and Mrs. Clinton rely on the common-interest

doctrine, which expands the coverage of the attorney-client privilege in

certain situations:
-21-

If two or more clients with a common interest in a litigated or

non-litigated matter are represented by separate lawyers and

they agree to exchange information concerning the matter, a

communication of any such client that otherwise qualifies as

privileged . . . that relates to the matter is privileged as

against third persons. Any such client may invoke the

privilege, unless it has been waived by the client who made the

communication.

Restatement § 126(1); see also Proposed Fed. R. Evid. 503(b)(3), 56 F.R.D.

at 236. This doctrine softens the ordinary requirement that lawyer-client

communications must be made in confidence in order to be protected by the

privilege. See Restatement § 121; John Morrell & Co. v. Local Union 304A,

United Food & Commercial Workers, 913 F.2d 544, 555-56 (8th Cir. 1990)

(applying the doctrine), cert. denied, 500 U.S. 905 (1991).

One possible interpretation of the meetings at issue here is that

they involved Mrs. Clinton in her personal capacity, her personal attorney,

Mrs. Clinton as a representative of the White House (which we assume for

the sake of argument would put her there in an official capacity), and the

White House’s official attorneys, in a type of four-sided conference. We

will assume this scenario as a factual framework for the possible

application of the common-interest doctrine. We conclude that the doctrine

is inapplicable, for two distinct reasons.

First, as our discussion in Part III-A, supra, demonstrates, the

White House’s assumption that communications made by Mrs. Clinton to Ms.

Sherburne and Ms. Nemetz “otherwise qualif[y] as privileged,” Restatement

§ 126(1), begs the question we are called upon to decide. In addition,

there is lacking in this situation the requisite common interest between

the clients, who are Mrs. Clinton in her personal capacity and the White

House. Mrs. Clinton’s interest in the OIC’s investigation is, naturally,
-22-

avoiding prosecution, or else minimizing the consequences if the OIC

decides to pursue charges against her. One searches in vain for any

interest of the White House which corresponds to Mrs. Clinton’s personal

interest. The common interest may be “either legal, factual, or strategic

in character,” id. cmt. e, but no legitimate interest offered by the White

House meets even this loose standard. Most of the interests put forward

by the White House are summed up in this excerpt from its brief:

Both [the White House and Mrs. Clinton] needed a full and

accurate understanding of the facts surrounding the various

incidents under investigation and of the legal consequences of

those facts; both had an interest in ensuring that there was no

distortion of these events by political and legal adversaries,

and no misunderstanding of them by the public.

Br. of White House at 27. In addition, the White House and Mrs. Clinton

cite the need for allocation of responsibility between personal and public

attorneys, the desire to determine whether any White House policies need

to be altered to prevent future difficulties, the fact that the OIC is

investigating “official misconduct,” and the ongoing Whitewater-related

investigations by the RTC, FDIC, and Congress as factors creating a common

interest between them.

We have no doubt that the White House and Mrs. Clinton are concerned

with understanding fully the facts involved in the OIC’s investigation, nor

that dividing responsibility between the personal attorneys and White House

counsel can be a difficult task. And surely the multiplicity of

investigating authorities only complicates the lives of these attorneys.

But these justifications amount to no more than an assertion that “we all

want to obey the law.” We do not believe the common-interest doctrine

stretches that far.
-23-

As for the suggestion that the OIC is investigating “official

misconduct,” thus triggering the interest of the White House, we believe

there is a difference between “official misconduct”--whatever that may be--

and “misconduct of officials.” The OIC is actually investigating the

actions of individuals, some of whom hold positions in the White House.

The OIC’s investigation can have no legal, factual, or even strategic

effect on the White House as an institution. Certainly action by the OIC

may occupy the time of White House staff members, may vacate positions in

the White House if any of its personnel are indicted, and may harm the

President and Mrs. Clinton politically. But even if we assume that it is

proper for the White House to press political concerns upon us, we do not

believe that any of these incidental effects on the White House are

sufficient to place that governmental institution in the same canoe as Mrs.

Clinton, whose personal liberty is potentially at stake.

The White House argues that it must be permitted to invoke the

attorney-client privilege “‘not for the benefit of the President as an

individual, but for the benefit of the Republic.’” Nixon v. Administrator

of Gen. Servs., 433 U.S. 425, 449 (1977) (quoting the Solicitor General’s

brief filed in that case). Because, however, the White House and Mrs.

Clinton have failed to establish that the interests of the Republic

coincide with her personal interests, the attempt must fail.

C.

We next confront the conclusion of the District Court that Mrs.

Clinton’s reasonable belief that her conversations with White House lawyers

were privileged is sufficient to prevent their disclosure. Because we

conclude that this issue is irrelevant to 
See United States v. Mullen & Co., 776 F. Supp. 620, 621 11

(D. Mass. 1991) (dicta); United States v. Tyler, 745 F. Supp.

423, 425-26 (W.D. Mich. 1990); United States v. Boffa, 513 F.

Supp. 517, 523 (D. Del. 1981) (dicta). See generally Restatement

§ 122(1).

See United States v. Hart, No. Crim. A. 92-219, 1992 WL 12

348425, at *1-2 (E.D. La. Nov. 6, 1992); cf. Wylie v. Marley Co.,

891 F.2d 1463, 1471-72 (10th Cir. 1989) (finding no abuse of

discretion in district court’s application of privilege where

relationship of employee to employer’s attorney was confusing).

See United States v. Moscony, 927 F.2d 742, 752 (3d Cir.), 13

cert. denied, 501 U.S. 1211 (1991); Griffith v. Davis, 161 F.R.D.

687, 694-95 (C.D. Cal. 1995). See generally Restatement § 121.

Mrs. Clinton bases her argument in part on the 14

confidentiality obligations of attorneys licensed in the District

of Columbia. See D.C. Rules of Professional Conduct Rule 1.6

(1996). The commentary to that very rule, however, states that

it is not intended to govern the scope of the attorney-client

privilege, see id. cmt. 5, and we have previously held that

ethical rules do not alter the privilege. See United States v.

Sindel, 53 F.3d 874, 877 (8th Cir. 1995).

-24-

the inquiry at hand, we need not examine whether Mrs. Clinton’s belief was

reasonable.

In some aspects of the law of attorney-client privilege, the client’s

reasonable beliefs may be relevant. For example, courts have found the

privilege applicable where the client reasonably believed that a poseur was

in fact a lawyer, reasonably believed that a lawyer represented the

11

client rather than another party, or reasonably believed that a

12

conversation with a lawyer was confidential, in the sense that its

substance would not be overheard by or reported to anyone else. All

13

these situations involve, in essence, reasonable mistakes of fact, none of

which is applicable here. Because Mrs. Clinton does not claim that she

believed that the White House lawyers represented her personally, her

argument must be that she believed that the law sweeps broadly enough to

cloak these conversations within the attorney-client privilege. But we 14

know of no authority, and Mrs. Clinton has 
-25-

cited none, holding that a client’s beliefs, subjective or objective, about

the law of privilege can transform an otherwise unprivileged conversation

into a privileged one.

As the OIC notes, only rarely does the law take account of an actor’s

beliefs about the law at the time he or she took action: the doctrine of

qualified immunity, the non-applicability of new rules of constitutional

law to federal habeas petitions brought by state prisoners, and the goodfaith exception to the warrant requirement are perhaps the best examples.

Without delving into the policy reasons behind these exceptional legal

doctrines, we are satisfied that there is no compelling reason that a

reasonable-mistake-of-law rule should apply in the realm of privileges.

See Trammel, 445 U.S. at 53 (overruling earlier case that had upheld

privilege against adverse spousal testimony and affirming defendant’s

conviction, despite possible reliance on prior law).

D.

For the reasons stated, we conclude that the White House may not use

the attorney-client privilege to avoid complying with the subpoena issued

in this case by a federal grand jury calling for the notes in question of

Ms. Nemetz and Ms. Sherburne.

IV.

The District Court held that the work product doctrine also applied

in this case to protect the White House attorneys’ notes from disclosure.

We disagree.
Work product immunity may be asserted by either the client 15

or the attorney. See, e.g., In re Sealed Case, 676 F.2d 793, 809

& n.56 (D.C. Cir. 1982).

Even if there is a common-interest work product doctrine, 16

see United States v. American Tel. & Tel. Co., 642 F.2d 1285,

1299-1300 (D.C. Cir. 1980), our earlier holding that the White

House and Mrs. Clinton share no relevant common interest makes

the doctrine inapplicable here.

-26-

The work product doctrine sharply limits the access of an opponent

to materials “prepared in anticipation of litigation or for trial.” Fed.

R. Civ. P. 26(b)(3); see also Hickman v. Taylor, 329 U.S. 495, 511 (1947)

(“materials obtained or prepared by an adversary’s counsel with an eye

toward litigation”); Restatement § 136(1) (material “prepared by a lawyer

for litigation then in progress or in reasonable anticipation of future

litigation”). The White House’s claim of work product immunity founders

on the “anticipation of litigation” requirement of the doctrine.

Courts have applied work product immunity in a variety of legal

contexts. See Hickman, 329 U.S. at 513-14 (civil case); United States v.

Nobles, 422 U.S. 225, 238 (1975) (criminal case); In re Grand Jury

Proceedings (Duffy), 473 F.2d 840, 846-47 (8th Cir. 1973) (grand jury

investigation). The essential element of each case, however, is that the

attorney was preparing for or anticipating some sort of adversarial

proceeding involving his or her client. The White House’s argument that 15

its lawyers were preparing for the OIC’s investigation is simply

unpersuasive; as we have stated previously, the OIC is not investigating

the White House, nor could it do so. White House officials may be under

investigation on account of their individual acts, but we know of no

authority allowing a client such as the White House to claim work product

immunity for materials merely because they were prepared while some other

person, such as Mrs. Clinton, was anticipating litigation. Cf. In re

16

California Pub. Utils. Comm’n, 
-27-

892 F.2d 778, 781 (9th Cir. 1989) (concluding that non-party to litigation

may not assert work product doctrine).

As a fall-back position, the White House suggests that anticipated

congressional hearings will suffice as well as anticipated litigation. The

Restatement seems to agree with the White House. See Restatement § 136

cmt. h (stating that litigation “includes a proceeding such as a grand jury

or a coroner’s inquiry or an investigative legislative hearing”). Neither

the White House, Mrs. Clinton, nor the Restatement cites any authority for

this proposition, however, and we have discovered none. Cf. P. & B.

Marina, L.P. v. Logrande, 136 F.R.D. 50, 58-59 (E.D.N.Y. 1991) (finding

letters from lobbyist to client not protected work product), aff’d, 983

F.2d 1047 (2d Cir. 1992) (table). Even if it could be said that the White

House anticipated a congressional investigation of the White House itself,

rather than merely of individuals who work at the White House, and even if

we consider a congressional investigation to be an adversarial proceeding,

the only harm that could come to the White House as a result of such an

investigation is political harm. As in our discussion of the commoninterest doctrine, we decline to endorse the position of the White House

where it is based on nothing more than political concerns.

The White House bears the burden of establishing the elements of work

product immunity. See Restatement § 139(2). Based on the showing the

White House has made here, we cannot conclude that the work product of its

attorneys may be kept from the OIC.
-28-

V.

At oral argument, we raised sua sponte the possibility that we could

decide the questions of law presented in this appeal without necessarily

applying them to this case. After further consideration, we have concluded

that our decision must be applied to the parties now before us.

In Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993), the

Supreme Court settled one major question of the retroactivity of decisions:

When this Court applies a rule of federal law to the parties

before it, that rule is the controlling interpretation of

federal law and must be given full retroactive effect in all

cases still open on direct review and as to all events,

regardless of whether such events predate or postdate our

announcement of the rule. . . . In both civil and criminal

cases, we can scarcely permit ‘the substantive law to shift and

spring’ according to ‘the particular equities of individual

parties’ claims’ of actual reliance on an old rule and of harm

from a retroactive application of the new rule.

Id. at 97 (citation and alterations omitted); see also Griffith v.

Kentucky, 479 U.S. 314, 322-23 (1987) (adopting same rule for criminal

cases).

The Court’s recent decisions have not forced it to contend with the

permissibility of “pure prospectivity,” that is, the practice of announcing

a new rule but applying it neither to the parties involved in the watershed

case nor to others similarly situated. The Court has on occasion resorted

to purely prospective decisionmaking, see James B. Beam Distilling Co. v.

Georgia, 501 U.S. 529, 536 (1991) (opinion of Souter, J.) (citing cases),

but language in the Court’s recent opinions convinces us that purely 
-29-

prospective adjudication is at least unwise and most likely beyond our

power. See Harper, 509 U.S. at 97 (citing “‘basic norms of constitutional

adjudication’” (quoting Griffith, 479 U.S. at 322)); id. at 106 (Scalia,

J., concurring) (“prospective decisionmaking is quite incompatible with the

judicial power”).

The most relevant precedent also suggests that it is appropriate to

apply our decision in this case. In Trammel, the Supreme Court considered

the well-established common law privilege against adverse spousal

testimony. See Trammel, 445 U.S. at 43-46 (describing history of

privilege). The Court had specifically affirmed the vitality of the

privilege in Hawkins v. United States, 358 U.S. 74, 77-79 (1958), and the

Proposed Rules of Evidence had recommended continuation of the privilege.

See Proposed Fed. R. Evid. 505(a), 56 F.R.D. at 244. Nevertheless, the

district court permitted Trammel’s wife to testify against him over his

objection, and the court of appeals affirmed his conviction. See Trammel,

445 U.S. at 42-43. The Supreme Court, by a unanimous vote, took the

privilege away from the defendant-spouse, leaving it to the witness-spouse

to decide whether to testify. See id. at 53. Despite this clear

overruling of its earlier precedent, the Court applied the new rule to

Trammel’s case and affirmed his conviction. We believe the same treatment

is appropriate in this case, which involves no such drastic change in the

law; in fact, because this is a case of first impression, our decision

involves no change in the law at all.

In short, a purely prospective decision is little more--perhaps

nothing more--than an advisory opinion. We decline to render such an

opinion and conclude that our holding necessarily applies to the White

House in this case.
-30-

VI.

To sum up, we hold that neither the attorney-client privilege nor the

attorney work product doctrine is available to the White House in the

circumstances of this case. Accordingly, the order of the District Court

is reversed, and the case is remanded for the entry of an order granting

the OIC’s motion to compel.

KOPF, District Judge, dissenting.

I. Introduction

 

I respectfully dissent. This case involves the institutional

capacity of the President of the United States to function with the advice

of legal counsel. The clarity of this point is made evident by the

subpoena, which demands notes taken by “the Office of Counsel to the

President.” (Subpoena Rider at 1.) Because of this important fact, I would

apply United States v. Nixon, 418 U.S. 683 (1974), rather than the position

urged by the Independent Counsel (IC). I would not follow Nixon for some

purposes, and disregard it for others.

Federal Rule of Evidence 501 requires that we decide whether federal

common law extends the attorney-client privilege to the White House. The

White House possesses an attorney-client privilege under proposed Federal

Rule of Evidence 503, sometimes called Supreme Court Standard 503 (Rule

503). Rule 503 accurately states the federal common law regarding the

attorney-client privilege, as this court has consistently stated in the

past. The following portion of Rule 503 is pertinent to the dispute here:
-31-

(a) Definitions. As used in this rule:

(1) A “client” is a person, public officer, or corporation,

association, or other organization or entity, either public or

private, who is rendered professional legal services by a

lawyer, or who consults a lawyer with a view to obtaining

professional legal services from him.

(2) A “lawyer” is a person authorized, or reasonably believed

by the client to be authorized, to practice law in any state or

nation.

(3) A “representative of the lawyer” is one employed to assist

the lawyer in the rendition of professional legal services.

(4) A communication is “confidential” if not intended to be

disclosed to third persons other than those to whom disclosure

is in furtherance of the rendition of professional legal

services to the client or those reasonably necessary for the

transmission of the communication.

(b) General rule of privilege. A client has a privilege to

refuse to disclose and to prevent any other person from

disclosing confidential communications made for the purpose of

facilitating the rendition of professional legal services to

the client, (1) between himself or his representative and his

lawyer or his lawyer’s representative, or (2) between his

lawyer and the lawyer’s representative, or (3) by him or his

lawyer to a lawyer representing another in a matter of common

interest, or (4) between representatives of the client or

between the client and a representative of the client, or (5)

between lawyers representing the client.

Rule 503, reprinted in 56 F.R.D. 183, 235-36 (1972).

I disagree with the IC that the Rule does not mean what it states,

and we should act as if it did not exist. There is no reason to deny the

well-recognized principle that the government, including the White House,

is legitimately entitled to the attorney-client privilege (and the workproduct doctrine). The 
-32-

White House, no less than a state government or a corporation, is entitled

to the privilege in all types of cases, including criminal cases, so that

the White House can comply with the law. The privilege advances the public

interest by assuring that the White House will receive well-founded, factspecific legal advice based upon candid responses from White House

officials. Accordingly, I disagree with the IC’s position that the White

House lacks the attorney-client privilege.

 However, the Supreme Court’s decision in Nixon persuades me that

the White House privilege gives way to a grand jury subpoena duces tecum

issued under the direction of the IC provided the procedural protections

of Nixon have been observed. Unlike the IC, I believe Nixon overcomes, but

does not erase, the privilege. Nixon requires us to conclude that the

President’s general need for confidentiality, expressed here by the

attorney-client privilege, is overshadowed by the grand jury’s general need

for evidence of the truth. Still, Nixon does not, as the IC urges and the

majority finds, permit us to assume that the White House lacks the

privilege in the first instance.

In particular, I would require, as Nixon did in the context of a

trial subpoena, that before documents are revealed to the grand jury:

(1) the special prosecutor must make an initial threshold

showing before the district court that the documents are: (a)

specifically needed; (b) relevant; and (c) admissible; 

(2) assuming such a showing has been made, the documents are

first delivered to the district judge, who will examine the

documents in chambers, to decide if in fact the documents are

relevant and admissible, and irrelevant documents will be

returned under seal to the White House.
-33-

Id. at 700-02, 713-16.

I do not agree that a grand jury subpoena directed at the White House

is more important than the trial subpoena directed at the White House in

Nixon. The President’s justifiable need for confidentiality is, as Nixon

recognized, ever present no matter what other governmental interests are

asserted by a prosecutor. The public purpose served by a grand jury is no

more important than the public purpose served by a criminal trial. Thus,

I disagree with the court’s failure to require the IC to make the same type

of showing on a motion to compel a response to a grand jury subpoena

directed at the White House as would be required by Nixon for a trial

subpoena.

Furthermore, because Mrs. Clinton also has an attorney-client

privilege in her personal capacity, her privilege, implemented in this case

by the “common interest” part of the rule, should be considered a complete

defense to the grand jury subpoena issued to the White House. I have two

reasons for this belief: (1) unlike the White House, Mrs. Clinton has

various constitutional rights that are implicated by intercepting her

privileged communications without warning and then revealing those

communications to a prosecutor; and (2) Nixon did not attempt to balance

the “public interest” against the “individual interest” and thus cannot

serve as precedent for the dispute between the IC and Mrs. Clinton in her

personal capacity.

Finally, because we should now declare for the first time that Nixon

overcomes the White House privilege if a proper showing is made, Mrs.

Clinton would consult with White House lawyers at her peril in the future.

She would be informed from our opinion that such consultations might no

longer be protected since the other 
-34-

party to her conversations (the White House and its lawyers) could be

obligated to respond to a grand jury subpoena if the prosecutor made the

showing required by Nixon. Consequently, in the future, and to the extent

of a grand jury subpoena, any such communications could not legally be

“intended” by Mrs. Clinton as “confidential” under Rule 503(a)(4) because

she would know and understand that her communications could be “disclosed

to third persons.”

Accordingly, I would affirm the district court’s properly cautious

decision refusing to enforce the subpoena. Yet I would make it clear that

the White House attorney-client privilege gives way to a grand jury

subpoena issued under the supervision of the IC if the procedural

protections afforded the White House by Nixon are satisfied. A detailed

explanation of these views is set forth below.

II. The White House

Like any other client, the White House has an attorney-client

privilege in all types of cases. The question, and it is a very difficult

one, is whether that privilege should prevail in this first-of-a-kind case.

Subject to certain procedural protections, fidelity to Nixon requires that

the White House privilege give way to the limited extent of a subpoena

duces tecum issued by a federal grand jury acting at the direction of the

IC. We should not, however, act as if the White House lacks the privilege

or allow the IC to make an end run around the procedural protections

afforded the White House by Nixon.
-35-

A. The White House and the Attorney-Client Privilege

We must ask two questions when determining whether the White House

has an attorney-client privilege: (1) what standard applies and (2) has

the White House satisfied that standard?

1. The Common Law and Rule 503

Federal Rule of Evidence 501 provides that “the privilege of a . .

. person” or “government” “shall be governed by principles of the common

law as they may be interpreted by the courts of the United States in light

of reason and experience.” It is our task to find the common law of

attorney-client privilege.

Promulgated by the Supreme Court in November 1972, Rule 503(a)(1)

plainly grants the White House the attorney-client privilege. The rule

extends the privilege to “organization[s] or entit[ies], either public or

private.”

The subpoena was directed to the “White House.” Thus, the IC

recognized the “White House” as a discrete governmental organization or

entity protected by the unambiguous language of Rule 503(a)(1).

Consequently, if Rule 503 applies, the White House has the privilege it

asserts. 

To avoid Rule 503, it is argued that the rule does not apply because

(1) Congress did not enact it; (2) it does not apply to criminal cases

involving governmental entities; (3) the public interest is not served when

a governmental entity asserts the privilege. None of these arguments

suggest a valid reason for failing to follow the plain words of the Rule.
-36-

 a. Rule 503 Reflects the Common Law Despite Congressional Action

Congress did not enact Rule 503 and various other privilege rules.

Instead, Congress adopted a general rule (Rule 501) allowing the federal

courts to establish privilege in light of the common law. See Jaffee v.

Redmond, 116 S. Ct 1923, 1927 n.7, 1930 (1996) (citing proposed Rule 504

regarding psychotherapist-patient privilege in support of the Court’s

adoption, under Rule 501, of such a privilege).

Our precedents correctly state, however, that Rule 503 is “‘an

accurate definition of the federal common law of attorney-client

privilege.’” In Re Bieter Co., 16 F.3d 929, 935 (8th Cir. 1994) (quoting

2 Jack B. Weinstein et al., Weinstein’s Evidence ¶ 503[02], at 503-17

(1975)) (applying rule and finding the privilege applied to partnership and

prevented disclosure of communication between a consultant of partnership

and attorney); United States v. Spector, 793 F.2d 932, 938 (8th Cir. 1986),

cert. denied, 479 U.S. 1031 (1987) (stating “courts have relied upon [Rule

503] as an accurate definition of the federal common law of attorney-client

privilege” and affirming order quashing subpoena for taped statements made

by client at direction of a lawyer); Citibank, N.A. v. Andros, 666 F.2d

1192, 1195 n.6 (8th Cir. 1981) (stating rule is “a source for defining the

federal common law of attorney-client privilege” and holding that privilege

belonged to trustee of a corporation and could be waived by him).

Other circuits have come to the same conclusion. See, e.g.,

Tennenbaum v. Deloitte & Touche, 77 F.3d 337, 340 (9th Cir. 1996) (the

court would look to Rule 503 since the proposed rule, although not adopted,

was a convenient comprehensive guide to existing federal law of privilege)

(citations omitted); United States v. 
This draft received tentative approval in May, 1996. 1

American Law Institute Nears Finish Line on Lawyer Ethics,

Product Liability Projects, 64 U.S.L.W. 2739 (May 28, 1996).

-37-

Moscony, 927 F.2d 742, 751 (3rd Cir.), cert. denied, 501 U.S. 1211 (1991)

(Supreme Court Standard 503, though not promulgated, is a restatement of

the common law of attorney-client privilege applied in the federal courts

before the adoption of the federal rules) (citations omitted); United

States v. (Under Seal), 748 F.2d 871, 874 n. 5 (4th Cir. 1984) (Rule 503

provides a comprehensive guide to the federal common law of attorney-client

privilege) (citations omitted).

Importantly, the Supreme Court proposed the Rule. This court, and

others, frequently refers to the Rule as “Supreme Court Standard 503.”

See, e.g., In Re Bieter Co., 16 F.3d at 935; United States v. Spector, 793

F.2d at 938. When searching for the common law, we should not disregard

the fact that the Supreme Court approved the Rule.

Distinguished commentators have also reached the same conclusion:

“Standard 503 is a restatement of the traditional common law attorneyclient privilege that had been applied in the federal courts prior to the

adoption of the federal rules. Consequently, despite the failure of

Congress to enact a detailed article on privileges, Standard 503 should be

referred to by the courts.” 2 Jack B. Weinstein et al., Weinstein’s

Evidence ¶ 503[02], at 503-19 (1996) (citing, among other cases,

Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 605 n.1 (8th Cir.

1977)) (footnotes omitted). See also Restatement of the Law (Third)

Governing Lawyers § 124 & Rep.’s n. at 412 (Proposed Official Draft 1996),1

available in WL database “REST-LGOV” (citing Rule 503(a)(1) 
-38-

as support for the proposition that the “prevailing rule” is that the

government has the same privilege as its private counterparts).

Therefore, the failure of Congress to adopt Rule 503 is not

significant. The Rule is an accurate definition of the federal common law

of attorney-client privilege despite the lack of Congressional approval.

b. Rule 503 Makes No Distinction for Criminal Cases

Contrary to the second argument for not applying it, the plain words

of Rule 503 make no distinction for criminal cases. I find no reason to

make an exception for special prosecutors who have a dispute with the White

House.

To the extent it is suggested that the privilege has never been

extended to a federal governmental entity in a criminal case brought by

another federal governmental entity, the point is meaningless. The reason

there are no such cases is obvious: intra-governmental disputes in the

federal criminal arena seldom arise, regardless of whether the attorneyclient privilege is involved.

Further, there is certainly no case which denies the privilege in

matters such as this. In fact, the only remotely relevant federal case

implicitly acknowledged the existence of the privilege for a state

governmental entity in a federal criminal investigation. In Re Grand Jury

Subpoena, 886 F.2d 135, 137-38 (6th Cir. 1989) (“city council” was a

“client” for the purpose of attorney-client privilege when a federal grand

jury sought documents from the City of Detroit and the city asserted the

privilege).
-39-

Most importantly, there is no reason to pretend the privilege does

not exist simply because the White House asserts it during a criminal

investigation. As will be discussed in more detail later, Nixon did not

take this approach. Rather, as the Nixon court made clear, the appropriate

approach is to balance the governmental privilege asserted by the White

House (whether it be the attorney-client privilege or some other privilege)

against the competing governmental interest asserted by the IC, the

ultimate goal being to promote the “public interest.” 418 U.S. at 707-13.

Consequently, I reject the argument that it is proper to ignore the

attorney-client privilege because the IC has the power to attach the label

“criminal” to this dispute.

c. A White House Privilege Promotes the Public Interest

Recognition of the privilege for governmental entities, particularly

the White House, advances the public interest.

Since Rule 503 was proposed, the federal courts have consistently

recognized that governmental entities have the attorney-client privilege.

See, e.g., Mead Data Cent., Inc. v. United States Dep’t of Air Force, 566

F.2d 242, 252-53 & n.20 (D.C. Cir. 1977) (recognizing privilege in Freedom

Of Information Act (FOIA) case and stating that in other contexts “there

are decisions which have applied [the privilege] to deny a discovery

request directed toward a government”) (citations omitted); Jupiter

Painting Contracting Co. v. United States, 87 F.R.D. 593, 598 & n.6 (E.D.

Pa. 1980) (recognizing privilege in a suit for a tax refund and stating

that “[c]ourts generally have accepted that attorney-client privilege

applies in governmental context”) (collecting federal cases dating from and

after 1963) (citations omitted). 
-40-

While it is true that none of these cases dealt with the precise

issue in this case, one cannot ignore the fact that the courts have

consistently held that the public interest is furthered by extending the

privilege to governmental entities. As a result, we should be very

skeptical of the IC’s argument that requires us to ignore a general

principle.

Since at least 1965, Congress has affirmatively recognized the

government’s need to be protected by the attorney-client privilege

regarding the production of documents. NLRB v. Sears, Roebuck & Co., 421

U.S. 132, 136, 154 (1975) (applying 5 U.S.C. § 552(b)(5)) (FOIA case). The

Court observed that the legislative history, authored in 1965, declared the

exemption “‘would include . . . documents which would come within the

attorney-client privilege if applied to private parties.’” Id. (quoting

S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965)). Consequently, believing

that Congress would find recognition of the privilege to be a surprise is

impossible.

The proposed Restatement of the Law (Third) Governing Lawyers also

recognizes that the attorney-client privilege “extends to a communication

of a governmental organization” and to “an individual officer, employee,

or other agent of a governmental organization . . . .” Restatement of the

Law (Third) Governing Lawyers § 124, at 408. This section “states the

generally prevailing rule that governmental agencies and agents enjoy the

same privilege as non-governmental counterparts.” Id. cmt. b at 409 &

Rep.’s n. at 412-14 (collecting federal and state cases dating from and

after 1942) (citations omitted) (emphasis added). The rationale is

obvious: “The privilege aids government entities and officers in obtaining

legal advice founded on a complete and accurate factual picture.

Communications from such agents should be correspondingly privileged.” Id.

at 408. The Restatement’s reasoned conclusion, 
Even those commentators who question whether the attorney2

client privilege was extended to governments at “common law” agree

“most” courts have recognized that governmental entities are

entitled to the privilege. 24 Charles Alan Wright & Kenneth W.

Graham, Jr., Federal Practice and Procedure, § 5475, at 125 (1986).

These commentators likewise predict the courts will continue to

recognize that the privilege extends to governmental entities. Id.

at 128. (“[I]t seems likely that some form of privilege for

governmental clients will be recognized by federal courts applying

Rule 501.”) (citations omitted.)

-41-

coming nearly twenty-five years after the Supreme Court proposed Rule 503,

lends added support for the finding that a governmental attorney-client

privilege advances, rather than detracts from, the public interest.2

Although the IC now holds the opposite view, the United States has

previously and consistently taken the position that governmental entities,

particularly the President and his advisers, are protected by the attorneyclient privilege. One prior expression of the views of the United States

regarding the attorney-client privilege, the President, and his advisers

is particularly thoughtful.

In a 1982 opinion issued to the Attorney General of the United

States, Assistant Attorney General Theodore B. Olson, of the Office of

Legal Counsel (OLC), advised the Attorney General 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 communications 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.”

Memorandum for the Attorney General re: Confidentiality of the Attorney

General’s Communications in Counseling the President, 6 
In addition, the Court held that to the extent they 3

reflected the mental impressions of counsel, the documents were

also protected from disclosure by the “work product” doctrine. 

Id. at 401-02. To the extent the notes in this case are “work

product,” they too would be protected under the “work product”

doctrine of Upjohn.

-42-

Op. Off. Legal Counsel 481, 495 (1982) (citations omitted), reprinted in

Appellee’s App. [hereinafter Att’y Gen.’s Mem.].

OLC found convincing support for its position in Upjohn Co. v. United

States, 449 U.S. 383, 389-97 (1981) (applying attorney-client privilege in

corporate context, rejecting “control group test,” and holding that

detailed information provided to corporate counsel by corporate managers,

who were not necessarily policy makers, regarding questionable payments by

corporation was protected from an IRS document summons under the attorneyclient privilege ). Att’y Gen.’s Mem. at 495-96. 3

According to OLC, the President, no less than the Upjohn corporation,

required the attorney-client privilege so he could comply with the law by

insuring that subordinates talked candidly with counsel. Id. OLC

reasoned:

[I]t is likely that, in most instances, the ‘client’ in the

context of communications between the President and the

Attorney General, and their respective aides, would include the

broad scope of White House Advisers in the Office of the

President. The ‘functional’ analysis suggested by Upjohn

focuses on whether the privilege would encourage the

communication of relevant and helpful information from advisors

most familiar with the matters on which legal assistance is

sought, as well as whether the privilege is necessary to

protect and encourage the communication of frank and candid

advice to those responsible for executing the recommended

courses of action.
-43-

Id. at 496.

If this court has to make a choice when discovering the common law

as applied to the White House, we ought to choose the analysis contained

in the Memorandum for the Attorney General. I am particularly opposed to

the adoption of the position urged by the IC because it is contrary to the

long-standing policy of the Department of Justice.

 To avoid Upjohn, it is argued that the White House is different from

a corporation in three distinguishing respects. It is argued that the

White House cannot be prosecuted for a crime. The IC also argues that

White House lawyers, unlike counsel for corporations, have a statutory

responsibility to report crimes. Finally, it is claimed that the White

House, as opposed to a corporation, has a duty to further honest

government.

Since the Upjohn decision was not based upon the fact that a

corporation could be prosecuted for a crime, it is an irrelevancy to

distinguish Upjohn on that basis. In Upjohn, the government pursued the

exact opposite of the IC’s argument here that the privilege does not apply

because the White House cannot be prosecuted for a crime. In Upjohn the

government argued that because corporations were subject to criminal

liability corporations had a sufficient incentive to comply with the law

and, therefore, corporations did not need the attorney-client privilege

because they would seek legal advice in any event. The Court rejected this

argument in a footnote. 449 U.S. at 393 n.2. Simply put, Upjohn did not

turn on the presence or absence of criminal liability. Id.

 

More to the point, Upjohn reasoned that corporate policy makers

legitimately need their lawyers to know the facts in order 
-44-

for the corporation to comply with the law, and, absent the corporate

attorney-client privilege, the fact-finding process would be impaired along

with the corporation’s ability to conform its conduct to the law after

receiving fact-based legal advice. Id. at 389-97. Likewise, the Court

reasoned that even minor corporate employees needed candid legal advice to

insure that the corporation complied with the law, and absent the privilege

such advice would not likely be forthcoming. Id. The same reasoning

applies to the White House.

I also reject the related argument that we can distinguish Upjohn on

the basis that a White House official who fears he or she may have violated

the criminal law should speak to a private attorney, not a government

lawyer. This argument misses the point for extending the privilege to

organizations. 

The organizational attorney-client privilege, be it asserted by the

White House or Upjohn, is intended to encourage officials, who may be

fearful of losing their jobs, their reputations, their privacy, or their

liberty, to tell the organization the raw truth so it can comply with the

law. The privilege is also premised upon the reasonable belief that nononsense legal advice generally depends upon confidentiality, and

corporations need such advice if they are to comply with the law. In this

regard, there is no reason to presume that the White House is different

from Upjohn.

The argument that government lawyers, unlike corporate counsel, are

required by statute to report crimes and this fact distinguishes White

House counsel from corporate counsel, is built upon a false premise. While

it is true that 28 U.S.C. § 535(b) requires governmental employees to

report crimes, the Department of Justice has properly reasoned that the

statute must be interpreted in conformity with, not in opposition to, the

attorney-client 
-45-

privilege. Antonin Scalia, Assistant Attorney General, Office of Legal

Counsel, Memorandum for the Deputy Attorney General re: Disclosure of

Confidential Information Received by U.S. Attorney in the Course of

Representing a Federal Employee at 2 (Nov. 30, 1976), (“[N]o information

the employee conveyed to the Assistant U.S. Attorney in connection with the

civil action may be used by the Department to prosecute the employee; nor

may it be turned over to anyone else, such as the employing agency, for use

against him.”), reprinted in Appellee’s App. Assistant Attorney General

Scalia stated: “Given the absence of any discussion of the subject in the

legislative history [regarding section 535(b)], it would in our view be

inappropriate to infer a congressional purpose to breach the universally

recognized and longstanding confidentiality of the attorney-client

privilege.“ Id. at 6-7 (emphasis added).

 

The Department of Justice has consistently followed this advice. For

example, in 1985 OLC stated that the “principal reason for our conclusion

that the attorney-client privilege overrides § 535(b) is that

confidentiality of communications between client and lawyer is essential

if Department attorneys are to be able to provide adequate legal

representation.” Ralph W. Tarr, Acting Assistant Attorney General, Office

of Legal Counsel, Duty of Government Lawyers Upon Receipt of Incriminating

Information in the Course of an Attorney-Client Relationship With Another

Government Employee at 6 (March 29, 1985) (citing prior opinions of OLC

dating from 1978), reprinted in Appellee’s App.

Lastly, the argument is advanced that the White House, but not a

corporation, has a public duty to seek honest government. Therefore, it

is argued, the attorney-client privilege should be ignored because it

impedes an honest government’s search for the truth. The “good government”

argument is no basis for denying the privilege to the White House.
-46-

To recognize that the White House has an attorney-client privilege

is not to adopt a “bad government” position though the existence of such

a privilege may inhibit the IC from obtaining all the information he might

like by making a demand upon the White House. As Upjohn recognized, the

attorney-client privilege serves the public interest by promoting the

“valuable efforts of corporate counsel to ensure their client’s compliance

with the law,” especially in those areas of the law that are “hardly . .

. instinctive.” 449 U.S. at 392. The same thing can be said for the White

House, especially because it has a duty to promote honest government. We

should not premise our decision upon the assumption that the IC is the only

guardian of just government.

 

In short, I reject the argument that the attorney-client privilege

in the hands of the White House is antithetical to the interests of

justice, though I acknowledge that the privilege may impede the work of the

IC. When a prosecutor asks the court for help in invading the confidences

of the President, the proper way to address the “public interest” question

is not to pretend that the White House lacks the attorney-client privilege.

On the contrary, the court should carefully balance, as Nixon did, the

competing governmental interests, subject to the procedural protections

that Nixon carefully set forth.

e. Summary

Rule 503 is an accurate statement of the common law. The rule is

therefore definitive, and we should apply it.
-47-

2. Application of Rule 503

Having determined that Rule 503 is definitive and that the

governmental attorney-client privilege set forth in Rule 503 generally

promotes the public interest when applied to the White House, we should

apply the rule to this case. The White House possesses the attorney-client

privilege because all the prerequisites for application of Rule 503(b)(1)

have been established.

a. White House As “Client” and Mrs. Clinton As “Representative”

Under Rule 503(a)(1), as applied to the evidence here, there is a

“client.” The “client” is the White House, acting through Mrs. Clinton in

her representative role as First Lady. As noted earlier, Rule 503

explicitly extends the attorney-client privilege to “organizations” or

“entities” that are “public” in nature. The rule also explicitly protects

communications involving a “representative” of a client. Rule 503(b)(1)

protects a “client’s” discussions “between himself or his representative

and his lawyer.” 

Mrs. Clinton is surely a “representative” of the White House. To the

extent the IC argues that Mrs. Clinton as First Lady should not be

considered a “representative” of the White House, I reject the argument as

factually and legally unsound.

Factually, the district court found that Mrs. Clinton, “like other

First Ladies before her, has a widely recognized role as an advisor to the

President and is generally considered to be a member of the President’s

inner circle.” Slip. Op. at 10. The district court’s finding is not

clearly wrong.
-48-

Legally, “Congress itself has recognized that the President’s spouse

acts as the functional equivalent of an assistant to the President.”

Association of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898,

904 (D.C. Cir. 1993) (holding Mrs. Clinton was a “full-time officer or

employee of federal government,” relying on and quoting 3 U.S.C. § 105(e)

(emphasis in original)). See also, Att’y Gen.’s Mem., 6 Op. Off. Legal

Counsel at 496 (attorney-client privilege covers the “broad scope of White

House advisers in the Office of the President”).

As a “member of the President’s inner circle” of advisers, Mrs.

Clinton is precisely the type of organizational “representative” the

attorney-client privilege would ordinarily cover. See, e.g., Upjohn Co.

v. United States, 449 U.S. at 387-95; In Re Bieter Co., 16 F.3d at 935-40

(granting a writ of mandamus and sustaining invocation of attorney-client

privilege by partnership; applying Upjohn to a person who, although not an

employee of the partnership, was a consultant; reaching this result

because: (1) communications were made for the purpose of seeking legal

advice; (2) it was reasonable to assume that client’s principal directed

consultant’s communication with counsel; (3) it was reasonable to assume

that client’s principal directed the communication be made for the purpose

of securing legal advice; (4) subject matter of discussion was within scope

of the consultant’s duties as evidenced by what consultant did; and (5)

communications were held in confidence).

b. To Or From A Lawyer

It is undisputed that there were communications to or from White

House counsel to or from the First Lady. See Rule 503(a)(2)&(b)(1).

Upjohn makes clear that the privilege goes 
-49-

both ways, that is, the privilege protects advice from a lawyer to a

client, and it also protects statements made by a client to a lawyer for

the purpose of informing the lawyer so the lawyer may give fact-specific

advice to the client. 449 U.S. at 389-91. Thus, communications from the

First Lady to White House counsel are protected just the same as

communications to the First Lady from White House counsel.

c. Confidential Communication

Given the undisputed facts presented in the declaration of White

House counsel, (IC App. at 27 ¶ 16, 29-30 ¶¶ 20-21), as well as the facts

presented in the declaration of Mrs. Clinton’s personal lawyer, (IC App.

at 35-37 ¶¶ 5-7), the communications recorded in the sought-after notes

were intended to be “confidential” within the meaning of Rule 503(a)(4).

These communications were not intended to be revealed to third parties, and

they were not. Furthermore, recognizing (1) the explicit language of Rule

503, (2) the wide acceptance of a governmental attorney-client privilege

by the federal courts, thoughtful commentators and the Department of

Justice, (3) the Supreme Court’s opinion in Upjohn, and (4) the fact that

Nixon did not rule on a White House assertion of the attorney-client

privilege, there was no reason for the White House, Mrs. Clinton, or the

lawyers to doubt that the communications would be held in confidence.

The presence of Mrs. Clinton’s personal lawyer does not change the

result. As will be discussed more fully later, Mrs. Clinton, in her

personal capacity, and the White House, as an entity represented by the

First Lady in her official capacity, shared a legal “matter of common

interest.” Rule 503(b)(3) prevents 
-50-

disclosure of communications “by [a client] or his lawyer to a lawyer

representing another in a matter of common interest.”

Among other things, both parties (the White House and Mrs. Clinton

personally) needed to respond carefully and candidly to the IC; therefore,

both required the advice of legal counsel. As a result, Rule 503(b)(3)

explicitly protects communications between White House counsel and the

First Lady even though a lawyer (Mrs. Clinton’s personal lawyer) for

another party (Mrs. Clinton in her personal capacity) was present.

d. Facilitating the Rendition of Legal Services

Finally, the undisputed evidence establishes that the communications

were made for the purpose of “facilitating the rendition of professional

legal services” to the White House as the “client” within the meaning of

Rule 503(b)(1).

The subject of the meeting that generated the first set of notes

pertained to the death of a senior White House official (Vincent W. Foster)

and Mrs. Clinton’s activities immediately afterward. (IC App. at 27 ¶ 16.)

The subject of the meeting that generated the second set of notes was the

discovery of billing records involving Mrs. Clinton which were found at the

White House and turned over to the IC as relevant evidence in his

investigation. (IC App. at 28-30 ¶¶ 18-21, 35-37 ¶¶ 5-7.)

Both meetings, and the notes regarding them, pertained to events that

directly involved the institutional functioning of the White House. It is

reasonable to believe that White House counsel and Mrs. Clinton discussed

her role as First Lady after the death of Mr. Foster and her role as First

Lady regarding the discovery of 
-51-

the billing records. Moreover, the events that were the subject of these

meetings between the First Lady and White House counsel are directly

related to issues the IC was authorized to investigate concerning the White

House as an institution. Slip Op. at 2-3. (IC authorized to investigate

death of former Deputy White House Counsel Vincent W. Foster and discovery

of Rose Law Firm billing records in the White House residence.)

Under these circumstances, it is reasonable to assume that the

President (or another principal at the White House) directed the First

Lady’s communication with White House counsel for the purpose of securing

legal advice for the White House. In Re Beiter Co., 16 F.3d at 938-39

(making similar assumptions in context of a partnership consultant).

Ignoring for the moment Mrs. Clinton’s personal stake in the matter,

the White House as a “client” had a legitimate and independent

institutional reason to pursue the two conferences between its

“representative” (Mrs. Clinton) and its “lawyers” (White House counsel) for

the “purpose of facilitating the rendition of professional legal services

to the client [the White House].” Rule 503(b)(1). White House lawyers had

a legitimate institutional need to know what the client’s “representative”

knew in order to advise the “client,” including the client’s

“representative,” what to do or not do. In particular, the White House had

a legitimate institutional need for the advice of its lawyers so that,

acting through people, including the First Lady, as it must, the White

House could carefully and candidly respond to the IC.

The decision to turn over billing records to the IC, records that

although discovered at the White House also involved Mrs. Clinton in her

personal capacity, is proof of the White 
-52-

House’s legitimate institutional need to have its lawyers advise and

consult with the “client’s representatives,” including individuals such as

the First Lady. On January 4, 1996, Jane C. Sherburne, special counsel to

the President, learned that Ms. Carolyn Huber, a White House employee, had

located in the White House residence a copy of billing records relating to

the work performed by attorneys at the Rose Law firm, including

Mrs. Clinton, for Madison Guaranty. (IC App. at 28 ¶ 18.) Ms. Sherburne,

in consultation with Mrs. Clinton’s personal lawyer, decided that the

records should be promptly turned over to the IC, the Senate Whitewater

Committee, the House Banking Committee, the FDIC and the RTC, and the

records were in fact turned over to those governmental bodies. (Id.) The

production of these documents caused the IC, among others, to launch an

investigation relating to the finding of the billing records. (Id.)

 As the Supreme Court has recognized, the attorney-client privilege

is extended to organizations so the people who ultimately effect the policy

of an organization can comply with the law by obtaining information from

subordinates and then directing those subordinates to comply with the law.

Upjohn, 449 U.S. at 390-93. The handling of the billing records here

proves why the Upjohn rationale for extending the attorney-client privilege

to corporations, acting as they must through people, is also applicable to

the White House. 

e. Summary

There was (1) a communication to or from Mrs. Clinton in her role as

an “inner-circle” representative of the client White House, Rule

503(a)(1)&(b)(1); (2) to or from a White House lawyer, Rule 503(a)(2); (3)

intended to be confidential, Rule 503(a)(4); (4) for the purpose of

seeking, obtaining, or providing legal 
-53-

assistance to the client White House, Rule 503(a)(4)&(b)(1). These

findings establish that the White House has the attorney-client privilege

it asserts. See also In Re Bieter Co., 16 F.3d at 935-40.

B. Balancing the Public Interest

Assuming the White House possesses the attorney-client privilege, two

issues must be resolved. First, we must decide whether the IC could ever

be entitled to the notes when the White House asserts the attorney-client

privilege. Second, we must address the issue of what procedural

protections must be employed to protect the White House’s legitimate need

for confidentiality, assuming the privilege is not an absolute bar and that

production may be required under certain circumstances. Both inquiries

require a careful balancing of the interests of the White House and the IC

to preserve and protect the public interest that both governmental entities

seek to promote.

1. Nixon’s Balancing Test

While the White House generally has the attorney-client privilege it

asserts here, this case is unprecedented. Never have the courts been

confronted with (1) a motion by an independent counsel (himself a

singularly unique creature under federal law) in a criminal investigation

(2) to enforce a grand jury subpoena for documents directed at the White

House (3) under circumstances where enforcement of the subpoena would

pierce the attorney-client privilege enjoyed by the White House.

Once we decide that the White House has a privilege that the IC seeks

to overcome, the only precedent that matters is United 
-54-

States v. Nixon, 418 U.S. 683. A brief summary of that case is helpful.

The Nixon court held that the public interest requires that

presidential confidentiality be afforded the greatest possible protection

consistent with the fair administration of justice. Nevertheless, the

Court also held that the President was required to turn over taped

conversations to the district court pursuant to a trial subpoena issued at

the request of a special prosecutor under Federal Rule of Criminal

Procedure 17(c), despite the President’s assertion of Executive Privilege.

The special prosecutor had made a preliminary showing of specific

need, relevance, and admissibility before a federal district judge. The

Supreme Court suggested that such a showing was always required when the

President invoked a privilege.

The Court then attempted to balance the twin concepts of “public

interest” asserted by the President and the special prosecutor. The Court

stated that “when the ground for asserting privilege as to subpoenaed

materials sought for use in a criminal trial is based only on the

generalized interest in confidentiality, it cannot prevail over the

fundamental demands of due process of law in the fair administration of

criminal justice.” Id. at 713.

As an additional precaution, the Court required the district court

to conduct an in camera examination of the tapes after the order for

production was issued, but before they were turned over to a special

prosecutor. The purpose of this examination was to decide whether the

tapes were actually relevant and admissible.

Now, as in Nixon, both the White House and the IC assert that the

“public interest” warrants a finding for their particular position. As

between these governmental entities, I agree that the 
The same analysis justifies piercing the work product 4

“privilege.”

However, as did the Supreme Court in Nixon, I would limit 5

the holding to criminal investigations involving special

prosecutors (and not to civil cases or congressional hearings). 

Nixon, 418 U.S. at 712 n.19.

-55-

“public interest” is the value to be preserved by our ruling. As a result,

the dispute comes down to this: Is the White House’s attorney-client

privilege generally more important than a grand jury’s criminal

investigation of the White House?

At this elevated level of abstraction, Nixon teaches that the

President’s general need for confidentiality (expressed here by the

attorney-client privilege) is outweighed by a grand jury’s need for

evidence of the truth. The Department of Justice has taken a similar view 4

in the past. See Att’y Gen.’s Mem., 6 Op. Off. Legal Counsel at 487-88

(“The more generalized the executive interest in withholding the disputed

information, the more likely it is that the claim of privilege will yield

to a specific, articulated need related to the effective performance by the

coordinate branches of their constitutionally assigned functions.”) (citing

Nixon). 

The White House has not articulated the specific harm to the public

interest that would occur if this subpoena was enforced. Nixon addressed

a similar issue and concluded that “[a]bsent a claim of need to protect

military, diplomatic, or sensitive national security secrets, we find it

difficult to accept the argument that even the very important interest in

confidentiality of Presidential communications of such material is

significantly diminished by production of such material for in camera

inspection with all the protection that a district court will be obliged

to provide.” Id. at 706. Therefore, I would find that, assuming the

procedural protections afforded the White House by Nixon are observed, the

attorney-client privilege may be invaded.5
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This is not a conclusion to be reached lightly. The White House has

a strong argument that an attorney-client privilege which is not absolute

is no privilege at all. Upjohn, 449 U.S. at 393. Moreover, as discussed

in more detail later, Nixon specifically recognized that the attorneyclient privilege was an exception to the general rule that “the public

. . . has a right to every man’s evidence.” 418 U.S. at 709-10.

Nevertheless, Nixon ultimately teaches that the number of times the

President’s confidences may be invaded will be few. The only time such

confidences may be probed is when the procedural protections carefully

articulated by Nixon have been satisfied. Accordingly, the attorney-client

privilege, while not absolute, will retain vigor for the White House

because the privilege will be overcome only infrequently and only after

painstaking judicial scrutiny.

2. Nixon’s Procedural Protections

The White House suggests the IC is on a “fishing trip.” After all,

the IC could simply call Mrs. Clinton to testify before the grand jury, as

he has done in the past, to investigate her knowledge of the facts.

Consequently, it is reasonable to ask: why does the IC need the privileged

notes?

We ought to be very cautious about assuming that the IC needs to

invade the White House attorney-client privilege to obtain the facts.

Upjohn forcefully made this point:
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Here the government was free to question the employees who

communicated with Thomas [corporate counsel] and outside

counsel. . . . While it would probably be more convenient for

the government to secure the results . . . by simply

subpoenaing the . . . notes taken by petitioner’s attorneys,

such considerations of convenience do not overcome the policies

served by the attorney-client privilege.

449 U.S. at 396.

If we require a preliminary showing of specific need, relevance, and

admissibility to a district judge as Nixon clearly did, 418 U.S. at 700-02,

713-14, such a requirement would (1) prevent the use of a grand jury

subpoena as part of an improper “fishing expedition” and (2) insure that

the White House attorney-client privilege was not lightly overturned.

Fidelity to Nixon requires that we approve the invasion of the White House

attorney-client privilege when absolutely necessary, but fidelity to Nixon

also requires that we extend to the White House the protections that Nixon

set forth before such an invasion takes place.

To avoid the preliminary showing requirement, the IC makes much of

the fact that Nixon involved a trial subpoena and this case does not. The

IC further points out that the preliminary showing requirement of Nixon was

(in part) based upon Fed. R. Crim. P. 17(c) which deals with trial

subpoenas. Two responses make the IC’s arguments unpersuasive.

Initially, Nixon repeatedly cautions that the unique interests of the

Presidency, not merely Rule 17(c), warrant active judicial supervision with

a threshold showing of need, relevance, and admissibility. Id. at 702,

713-16. Quite apart from Rule 17(c), early precedent required a showing

that “the Presidential material was ‘essential to the justice of the

[pending criminal] case.’” Id.
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at 713 (quoting United States v. Burr, 25 F. Cas. 187, 192 (C.C. Va. 1807)

(No. 14,694)) (brackets in Nixon). 

Moreover, I am unconvinced by the logic of the IC’s argument. I do

not believe a grand jury subpoena is more important than a criminal trial

subpoena such that the procedures required by Nixon should be cast aside

when the IC decides to cause the issuance of grand jury subpoena aimed at

the White House. 

Given the difference between a grand jury proceeding and a trial, the

need, relevance and admissibility standard would be judged considering the

nature of the proceeding. For example, treating impeachment evidence more

liberally might be appropriate. Compare Nixon, 418 U.S. at 701. Nixon left

these issues to the “sound discretion of the trial court since the

necessity for the subpoena most often turns upon a determination of factual

issues.” Id. at 702. Nevertheless, the investigative nature of a grand

jury is no reason for the wholesale disregard of the protections that Nixon

affords the unique status of the Presidency.

Even a favorable ruling for the IC at the first stage of the

proceedings would not mean that the IC would ever see the notes. Assuming

that a threshold showing had been made, Nixon required that the notes be

delivered to the district court, not to the special prosecutor. Nixon, 418

U.S. at 713-16. After that, the district court was required to make an in

camera examination of the notes. Id.
Although the district court could seek the help of the IC 6

and White House counsel, it could not make a disclosure until the

proper examination had been completed. Id. at 715 n.21.

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With the notes before it, the court would (1) determine whether the 6

notes were relevant and admissible; (2) ensure that they were treated with

the sensitivity any Presidential papers command; and (3) require that the

irrelevant portions of the notes (if any) be promptly returned to the White

House under seal. Id. The White House is entitled to similar protections

when served with a grand jury subpoena that invades the attorney-client

privilege, and I disagree with the refusal to extend such protection to the

White House.

 3. Threshold Showing

The White House contends the IC has not made a sufficient initial

showing of specific need, relevance, and admissibility. The district court

did not reach this issue. The IC does not argue that he satisfied Nixon.

He assumes that he was not required to make such a showing. He does not

brief the question of whether he made a sufficient showing. Accordingly,

we need not decide for the first time on appeal whether the IC accidentally

made the required showing.

III. Mrs. Clinton

Mrs. Clinton has an attorney-client privilege that protects against

disclosure of the notes. However, as noted earlier, this court should also

rule for the first time that the White House privilege must give way to a

grand jury subpoena issued under the supervision of an independent counsel

if the procedural protections of Nixon are satisfied. Consequently, once

Mrs. Clinton has been 
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advised by virtue of our opinion that she can no longer reasonably believe

her conversations with White House counsel will be held in confidence in

every circumstance, consistent with Rule 503(a)(4) Mrs. Clinton will

consult with White House counsel in the future at the risk of having her

communications disclosed to the grand jury.

A. Mrs. Clinton and the Attorney-Client Privilege

The IC has conceded that in her personal capacity Mrs. Clinton is

entitled to the protections of the attorney-client privilege regarding

discussions with her private lawyers. Slip. Op. at 12 n.5. The IC can

take no other position. Rule 503(a)(1)&(b)(1).

The IC appears to argue that Nixon applies to Mrs. Clinton in her

personal capacity. Alternatively, the IC argues that even if Nixon does

not apply to Mrs. Clinton, she lost her personal privilege by sharing her

thoughts with White House lawyers. I disagree on both counts.

1. Nixon Does Not Apply to Mrs. Clinton

Although it is unclear, the IC may argue not only that Nixon

overcomes the White House privilege, but also that it justifies disallowing

Mrs. Clinton’s personal attorney-client privilege to the extent that there

were communications shared with White House counsel. If this is the IC’s

contention, I am not persuaded.

Nixon specifically recognized that the attorney-client privilege was

an exception to the general rule that “the public . . . has a right to

every man’s evidence,” stating:

[T]he Fifth Amendment to the Constitution provides that no man

“shall be compelled in any criminal case to be a 
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witness against himself.” And, generally, an attorney . . .

may not be required to disclose what has been revealed in

professional confidence. These and other interests are

recognized in law by privileges against forced disclosure,

established in the Constitution, by statute, or at common law.

Id. at 709-10.

Despite Nixon’s recognition of the transcendent value of the

attorney-client privilege, it is a reasonable extension of Nixon to pierce

the organizational attorney-client privilege asserted by the White House.

Such an extension is appropriate because the Nixon opinion instructs that

generalized governmental confidentiality privileges are on balance less

important than the government’s search for the truth when both governmental

interests are compared with the “public interest.”

It is quite a different thing to retroactively deny the protection

of the attorney-client privilege to an individual like Mrs. Clinton based

on the “public interest.” This distinction is important because the Fifth

and Sixth Amendments protect Mrs. Clinton, unlike the White House, and a

violation of her attorney-client privilege may also violate her

constitutional rights. See, e.g., O’Brien v. United States, 386 U.S. 345

(1967) (although they were not revealed to prosecutors, governmental

interception of conversations between a defendant and his lawyer required

vacation of conviction) (relying upon Black v. United States, 385 U.S. 26

(1966)). Cf. Weatherford v. Bursey, 429 U.S. 545, 557 (1977) (explaining

and distinguishing O’Brien and Black and stating “[t]his is not a situation

where the State’s purpose was to learn what it could about the defendant’s

defense plans” by intruding “on the lawyer-client relationship . . .”).
See, e.g., Upjohn, 449 U.S. at 389 (stating “[t]he 7

attorney-client privilege is the oldest of the privileges for

confidential communications known to the common law”); Hunt v.

Blackburn, 128 U.S. 464, 470 (1888) (stating the privilege “is

founded upon the necessity, in the interest and administration of

justice, of the aid of persons having knowledge of the law and

skilled in its practice, which assistance can only be safely and

readily availed

of when free from the consequences or the apprehension of

disclosure”).

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In addition, and more significantly, the dispute between the White

House and the IC solely involves the “public interest,” while the dispute

between the IC and Mrs. Clinton pits the “public interest” against

“individual liberties,” constitutional and otherwise. Nixon did not

attempt to balance “public” and “individual” interests, and we thus lack

any meaningful guidance on the matter.

Given the Supreme Court’s historic respect for the attorney-client

privilege and the Nixon opinion’s recognition that the attorney-client

7

privilege normally trumps the rule that “the public . . . has a right to

every man’s evidence,” we should not expand Nixon beyond disputes between

governmental entities such as the White House and the IC.

2. The “Common Interest” Provision Protects Mrs. Clinton

To avoid the difficulty of applying Nixon to Mrs. Clinton, the IC

alternatively argues that even if the communications evidenced by the notes

are “confidential” within the meaning of Rule 503(a)(4), Mrs. Clinton and

her personal lawyers shared their thoughts with White House lawyers, and

Mrs. Clinton lost her personal privilege as a result. I disagree.
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The rule protects otherwise “confidential” communications made by the

“[client] or his lawyer to a lawyer representing another in a matter of

common interest.” Rule 503(b)(3). The “common interest” provision of Rule

503 “is in accord with previous federal practice in recognizing a privilege

both for inter-attorney communications and joint conferences where the

client communicates to the other attorney directly.” 2 Jack B. Weinstein

et al., Weinstein’s Evidence ¶ 503[06], at 503-99 (footnote omitted).

Accord John Morrell & Co. v. Local Union 304A, 913 F.2d 544, 555-56 (8th

Cir. 1990) (recognizing and sustaining “joint defense” privilege as to an

internal memorandum written by corporate general counsel that was shared

with codefendants in another case), cert. denied, 500 U.S. 905 (1991)

(citations omitted). See also United States v. American Tel. & Tel. Co.,

642 F.2d 1285, 1300 (D.C. Cir. 1980) (since “MCI shares common interests

with the United States,” MCI did not waive the work product privilege by

sharing documents with the government).

 The rule applies “not only if litigation is current or imminent but,

consistently with the rest of the Standard, whenever the communication was

made in order to facilitate the rendition of legal services to each of the

clients involved in the conference.” 2 Jack B. Weinstein et al.,

Weinstein’s Evidence ¶ 503[06], at 503-99 (footnote omitted). Drafters of

the “common interest” provision of the rule “intended the privilege to be

broadly construed in multi-party situations.” Id. at 503-100 (footnote

omitted).

The evidence and the findings of the district court establish that

there were two “clients,” the White House, represented by Mrs. Clinton in

her role as First Lady, and Mrs. Clinton personally; each “client” was in

turn represented by separate lawyers regarding matters of “common

interest.” Consider again the apparent joint decision of the White House

and Mrs. Clinton to turn 
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over to the IC the billing records found at the White House. As a

categorical matter, the “common interest” provision of Rule 503(b)(3)

plainly applies to Mrs. Clinton and the White House because both

legitimately needed the advice of separate lawyers in order to carefully

and candidly respond to the IC, among others.

The IC argues that the White House does not have the attorney-client

privilege, or that if it does, Nixon overcomes the privilege and Mrs.

Clinton cannot personally claim that the “common interest” rule protects

her communications. The IC asserts that Mrs. Clinton loses the protection

of the attorney-client privilege once the White House does. This argument

fails for two reasons.

As demonstrated earlier, the White House has the attorney-client

privilege. Since the White House has always possessed the privilege, the

IC cannot properly argue that Mrs. Clinton loses the “common interest”

protection because the White House lacked the attorney-client privilege in

the first place. The White House had the privilege then and has it now.

Nixon may overcome, but it does not erase, the White House privilege.

Next, I agree, as indicated earlier, that, by extension of the Nixon

reasoning, the White House attorney-client privilege must give way under

certain very limited circumstances. However, a precedent making extension

of Nixon to the White House’s attorney-client claim does not justify

denying Mrs. Clinton the protection of her personal attorney-client

privilege safeguarded by the “common interest” provisions of the rule.

The IC has cited no case, nor have I found one, remotely suggesting

that a party otherwise protected by the “common interest” provision of the

attorney-client privilege loses that protection because a court determines

after the fact for the first 
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time that the other party’s attorney-client privilege must, on balance,

give way. We have pointedly recognized that it is “fundamental that the

‘joint defense privilege cannot be waived without the consent of all

parties to the defense.’” John Morrell & Co., 913 F.2d at 556 (citation

omitted) (emphasis added). Mrs. Clinton, not this court retroactively

applying a first time ruling regarding the White House, must waive the

privilege before the grand jury may examine the notes the IC seeks.

B. Mrs. Clinton, the White House, and the Future

Rule 503(a)(4) states that a “communication is ‘confidential’ if not

intended to be disclosed to third persons . . . .” The committee notes

state that “intent is inferable from the circumstances.” 2 Jack B.

Weinstein et al., Weinstein’s Evidence ¶ 503(a)(4)[01], at 503-39. See 56

F.R.D. 238 advisory committee’s note.

Once aware by virtue of our opinion that her conversations with White

House counsel may be disclosed to the grand jury because the White House

may be obligated to respond to a subpoena under certain limited conditions,

if Mrs. Clinton continues to have such conversations in the future she can

no longer “intend” for the privilege to protect these conversations from

a grand jury subpoena. See, e.g., 2 Jack B. Weinstein et al., Weinstein’s

Evidence ¶ 503(a)(4)[01], at 503-39 & n.2 (citing, among other cases,

Hollings v. Powell, 773 F.2d 191, 196-97 (8th Cir. 1985), cert. denied, 475

U.S. 1119 (1986) (where mayor later testified to conversations with city

attorney in a suit brought against mayor and city, the conversation was not

intended to be confidential and the privilege was waived)).
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IV. Conclusion

As between the IC and the White House, we must faithfully apply the

Nixon decision because there is insufficient reason to distinguish that

case from this one. As between the IC and Mrs. Clinton, we should

understand the limits of the Nixon decision, and respect the fact that we

are dealing with the rights of an individual. I would affirm the district

court’s prudent refusal to enforce the subpoena.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.