### 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 (O IC) appeals from an order of the District Court denying the OIC’s motion to compel the production o f documents subpoenaed by a federal grand jury. We reverse and remand.

### -2- I.

The task assigned to Independent Counsel Kenneth W. Starr is t o investig ate and prosecute matters “relating in any way to James B

. McDougal’s, President William Jefferson Clinton’s, or Mrs. Hillary Rodham Clinton’s relationshi ps with Madison Guaranty Savings & Loan Association, Whitewater Developmen t 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 pursuin g evidence of other violations of the law developed during an d connected with or arising out of his primary investigation, known generall y 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 2 1, 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 an y attorney from the Office of Counsel to the President and Hillary Rodham C linton (regardless whether any other person was present)” pertaining to several Whitewater-relate d subjects. Subpoena Rider at 1. The White House identified nine sets of note s responsive to the subpoena but refused to produce them, citin g
exe cutive privilege, attorney-client privilege, and the attorney wor k 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 th e White House. The first set of documents comprises notes taken by Associat e Cou nsel to the President Miriam Nemetz on July 11, 1995, at a meetin g attended by Mrs. Clinton,

### -3-

Specia l 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 Presiden t Vincent W. Foster, Jr. The documents in the second collection are notes taken by Ms. Sherburne on January 26, 1996, during meetings attended b y Mrs. Clinton, Mr. Kendall, Nicole Seligman (a partner of Mr. Kendall’s), and, at times, John Quinn, Counsel to the President. These meetings, whic h took place during breaks in and immediately afte r Mrs. Clinton’s testimony before a federal grand jury in Washington, D.C., concerned primarily the dis coveryof certain billing records from the Rose Law Firm in th e residence area of the White House.
The White House abandoned its claim of executive privilege befo re the Distri ct Court, relying solely on the attorney-client privilege and th e
wor k product doctrine. Mrs. Clinton also entered a personal appearanc e through counsel in th e District Court and asserted her personal attorneyclient privilege. The District Court found it unnecessary to reach th e broade st question presented by the OIC, whether a federal governmenta l entity may assert the attorney-client privilege or the work produc t doctrine in response to a subpoena by a federal grand jury. Instead, the court con cluded that because Mrs. Clinton and the White House had a “genui ne and reasonable (whether or not mistaken)” belief that th e
con versations at issue were privileged, the attorney-client privileg e applied. Memorandum Opinion and Order at 20. I n addition, the court held that the work product doctrine prevented disclosure of the notes to th e grand jury. See id. at 22. Th e OIC appealed, and we granted expedited review. Mrs. Clinto n
mov ed to intervene formally, and we granted her motion. The case wa s submitted following oral arguments in a closed session. The District Cour t 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 disput ed 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 th e secrecyof the grand jury’s proceedings, we filed our opinion under seal
on Ap ril 9, 1997, intending to publish a redacted opinion shortl y ther eafter. Since we filed our opinion, however, press reports hav e rela ted some of the substance of our decision. Believing that thes e disclosures have port rayed 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 ame nded, together with Judge Kopf's dissent, is released fo r publication, and the briefs and appendices are ordered unsealed.

II.

We first consider our jurisdiction to entertain this appeal. A n order of a district court denying a motion to quash a grand jury subpoena-

- that i s, an order requiring compliance with the subpoena--is no t imm ediatelyappealable. 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 ) (deter mining that, in unique context of case, President could appea l without first being c ited 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 a n appealable order, either under 18 U.S.C. § 3731 (1994) (permitting government to appeal from a n order “excluding evidence . . . in a criminal

### -5-

pro ceeding”), or under 28 U.S.C. § 1291 (1994) (permitting appeals fro m “all f inal decisions of the district courts”). See In re Grand Jur y 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 (3 d Cir. 1979 ). It makes no practical difference that the instant cas e involves the denial of a motion to enforce a subpoena rather than the gran t of a mo tion to quash a subpoena. We conclude that we have jurisdictio n 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 wil l address first the issue that the District Court found i t unnecessary to decide: whether an entity of the federal government may us e the att orney-client privilege to avoid complying with a subpoena by a fede ral grand jury. Before we confront the merits of this question , however , we believe it is important to identify what is not at issue i n this ca se. The OIC does not seek to invade the attorney-clien t 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 governm ental privilege, with the White House (or the Office of the President, alternatively) as client and Ms. Sherburne and Ms. Nemet z as attorneys. Accord ingly, the White House is the real party in interest in this case, although Mrs. Clinton presents arg uments similar to those of the White House in her capacity as an intervenor.

### -6- The discussion that follows can be s ummed up rather simply. We need not decide whether a governmental attorney-client privilege exists in othe r contexts , for it is enough to conclude that even if it does, the Whit e House may not use the privilege to withhold potentially relevan t information from a federal grand jury.

A.

“[T] he privilege of a witness, person, government, State, o r political subdivision thereof [is] governed by the principles of the commo n law as they may be interpreted by the courts of the United States in the light o f reason and experience.” Fed. R. Evid. 501. We must therefor e apply the federal common law of attorney-client privilege to the situation presented by this cas e. See In re Bieter Co. , 16 F.3d 929, 935 (8th Cir. 1994).

The OIC and the White House have taken strikingly differen t rhetorical approaches to the question presented here. The OIC argues that recognizing an attorney-client privilege in these circumstances would be tanta mount to establishing a new privilege, which courts ordinaril y undertake with great reluctance. The White House, in contrast, argues tha t th e attorney-client privilege is already the best-established of th e common-law privileges and that, furthermore, it is an absolute privilege. The White House is correct, of course, in its as sertion that the attorneyclient privilege is the oldest known to the comm on law. See Upjohn Co. v. United S tates , 449 U.S. 383, 389 (1981). But the lengthy roots of th e privilege do not necessarily mean that it must apply in this dispute withi n the federal government, especially because the privilege has not previousl y been so applied. Nor does the White House advance its case significantly by arguing that the attorney-client privilege is absolute, in the sens e 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. Unite d States Dist. Court , 881 F.2d 1486, 1493-94 (9th Cir. 1989). This argument merely begs the true question, whether a governmental attorney-clien t privilege exists at all in the context of a federal criminal investigation

.

We addres s this question by beginning with Proposed Federal Rule of Evidence 503, which w e have described as “a useful starting place” for an examination of the federal common law of attorne y-client privilege. In re Bieter Co. , 16 F.3d a t 935. As promulgated by the Supreme Court in 1972, Proposed Rule 503 would have defined “client” to include “a person, public offi cer, or corporation, association, or other organization or entity , either public or private.” Proposed Fed. R. Evi d. 503(a)(1), reprinted in 56 F.R.D. 183, 235 (1972). The commentary makes it clear that “[t]h e defin ition of ‘client’ includes governmental bodies.” Id. advisor y committee’s note. But neither the proposed rule nor the commentary ha s anything to say about the particular situation before us in this case; the y repre sent 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 la w have taken similar approaches. See Restatement (Third) of the Law Governing Law yers § 124 (Proposed Final Dr aft No. 1, 1996) [hereinafter Restatement] (“[T]he attorney-clien t 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 leas t
some concern about applying the privilege broadly to governmental entities

. Uniform Rule 502 limits the governmental privile ge to situations involving a pending investigati on or litigation and requires a finding by the court that d isclosure will “seriously impair” the agency’s pursuit of th e investigat ion or litigation. See Unif. R. Evid. 502(d)(6). Language in 5 the Restatement addre sses even more directly the concerns relevant in the instant case:
More particularized rule s may be necessary where one agency of governm ent claims the privilege in resisting a demand fo r 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 Restatemen t 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 attorne y-client privilege. In In
re Grand Jury Subpoenas Duces Tecum (Farber) , 574 A.2d 449 (N.J. Super. Ct

. App. Div. 1989), a Ne w Jersey intermediate appellate court considered two subpoenas issued by a county grand jury to private lawyers who had bee n retained t o represent a county agency. The court concluded that “th e privilege is fully ap plicable 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 bee n requ ired to appear before the grand jury and invoke the privilege i n response t o specific questions, see id. at 458. In In re Grand Jur y Subpoena (Doe) , 886 F.2d 135 (6th Cir. 1989), th e Sixth Circuit considered
a su bpoena issued by a federal grand jury to the city of Detroit. Th e court vacated the district court’s finding that the city council was not the client of the city’s corporation counsel but concluded that th e application of the attorney-client privilege depended on th e confidentiality of the communications, which in turn depended on the prope r applica tion of the state open-meetings law. See id. at 138. The cour t 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 particularl y persuasive. First, neither court actually applied a governmental attorney

client privilege to block a grand jury’s investigation; both found i t necessary to remand for further proceedings. We hesitate to ignor e jud icial pronouncements too readily as mere dicta, however, for we mus t find g uidance somewhere in the parties’ proffered authorities, none o f which is directly in point. Several significant factual distinction s between the aforementioned cases and the case at bar are therefore als o 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 J ersey but does not bear directly on the relationship of a feder al grand jury to a federal entity. In addition, that cas e involved private atto rneys hired as special counsel to the county agency, and the c ourt 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.2 d at 455. It is, of course, impossible for us to determine how the Ne w Jersey court would have harmonized this statute with the asserte d 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, impl icates potentially serious federalism concerns n ot present in the case before us. The court’s brief opinio n is also rather unpersuasive legally, as it contains n o acknowledgment that to extend the privilege to a governmental body where individuals within the government are being scrutinized by a grand jury fo r criminal activity pos es anything but a routine concern. (The court cited onl y two privilege cases, neither of which had anything to do wit h government lawyers.)

Movin g somewhat further afield, the White House cites a number o f
cases in which courts have applied a governmental attorney-client privileg e in civ il actions. These cases, all of which involved either the su i generis jurisprudence of the Freedom of Information Act (5 U.S.C. § 55 2 (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).
-11- the party seeking information was a private litigant adversarial to th e government , are not particularly persuasive in the circumstances of this 7

case. Even if we were to conclude that the governmental attorney-client pr ivilege ordinarily applies in civil litigation pitting the federa l government against private parties, a question t hat 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 exe cutive privilege may apply differently in criminal and civil cases); Cervantes v. Time, Inc. , 464 F.2 d 986, 992-93 n.9 (8th Cir. 1972) (recognizing tha t reporter’s privilege may apply differently in criminal and civil cases), cert. denied , 409 U.S. 112 5 (1973); Zerilli v. Smith , 656 F.2d 705, 711-12 (D.C. Cir. 1981) (same).

La cking persuasive direction in the case law, we turn to genera l principles.

“For more than three cen turies 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 vari ous claims of exemption, we start with the pri mary assumption that there is a general duty to giv e wha t testimony one is capable of giving, and that an y exemptions which may exist are distinctly exception al, being so many derogations from a positive general rule.”
United St ates v. Bryan , 339 U.S. 323, 331 (1950) (quoting 8 J. Wigmore , Evidence § 2192 (3d e d. 1940)). Privileges, as exceptions to the general rule, “are not lightl y created nor expansively construed, for they are in de rogation of the search for truth.” Nixon , 418 U.S. at 710. It i s appropriate to recognize a privilege “‘only to the very limited extent tha t permitting a refusal to testify or excluding relevant evidence has a publi c good tr anscending the normally predominant principle of utilizing al l rat ional means for ascertaining truth.’” Trammel v. United States , 44 5 U.S. 40, 50 (1980) (quoting Elkins v. United States , 364 U.S. 206, 23 4 (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) (adoptin g 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); Un ited States v. Arthur Young & Co. , 465 U.S. 805, 817 (1984) (rejecting work product immunity for acco untants); Upjohn , 449 U.S. at 390 , 397 (assuming, and effectively deciding, that corporation ma y assert attorney-client privilege); United States v. Gillock , 445 U.S. 360, 373 (1980) (rejecting speech-or-debate privilege for state legislators); Tramme l , 445 U.S. at 51-53 (rejecting privilege against adverse spousa l testimony, but contin uing to recognize privilege for confidential marital communications); Nixon , 418 U.S. at 705-13 (recognizing qualified executiv e pri vilege); Couch v. United States , 409 U.S. 322, 335 (1973) (rejectin g
acco untant-client privilege); Branzburg v. Hayes , 408 U.S. 665, 690-9 1 (1972) ( rejecting news reporter’s privilege); In re Grand Jury (Virgi n 8 Islands) , 103 F.3d 1140, 1146-47 (3d Cir. 1997) (rejecting, like eigh t other circuits, parent-child privilege); Petersen v. Douglas County Bank & Trust Co. , 967 F.2d 1186, 1188 (8th Cir. 1992) (rejecting insurer-insure d confidentialityprivilege); 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 broa d 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.
-14- principl e that the public is entitled to “every man’s evidence” i s “particularly applica ble to grand jury proceedings.” Branzburg , 408 U.S. at 688. “[O]ur histo ric commitment to the rule of law,” and particularly to the twin goals of criminal justice “‘that guilt shall not escape o r innocence suffer,’” a re strong factors weighing against the applicability of a privilege. Nixon , 418 U.S. at 708-09 (citation omitted).

In essen ce, the parties’ arguments center on two cases, neither o f which is directly ana logous to this case, but each of which has relevance to our de cision: Nixon and Upjohn . In Nixon , a special prosecuto r directed a subpoena duces tecum to President Nixon, seeking tapes and othe r materials for use in the criminal trial of seven defendants, includin g former White House officials. The President refused to comply with th e subpoena, claiming executive privilege. After c oncluding that the special pros ecutor had made the showing required by Federal Rule of Crimina l Procedure 17(c) for a trial subpoena, see id. at 700, the Supreme Cour t considered the Presid ent’s claim of privilege. The Court recognized that the need for confidential presidential communication “can be said to deriv e from the supremacy of each branch within its own assigned area o f constitutional duties,” id. at 705, and that the privilege for presidentia l
com munications “is fundamental to the operation of Government an d inextricably rooted

### -15-

in the separation of powers under the Constitution,” id. at 708. Despite the strong constitutional foundations of the pri vilege, however, the Court concluded that it had to give way to the special prosecutor’s subpoena:

APresident’s acknowledged need for confidentiality in th e communications of his of fice is general in nature, whereas the consti tutional need for production of relevant evidence in a crimi nal proceeding is specific and central to the fai r adjud ication of a particular criminal case in th e administration of justic e. Without access to specific facts a criminal prosecution may be totally frustrated. Th e President’s broad interest in confidentiality of co mmunications will not be vitiated by disclosure of a limited number o f 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 P resident did not assert an attorney-client privilege in Nixon , and so the case is not directl y controlling. We agre e with the OIC, however, that Nixon is indicative of the general principle that the government’s need for confidentiality may be subo rdinated to the needs of the government’s own criminal justic e processes. The White House counters by pointing out that Nixonitself reco gnized the importance of common-law privileges, including the attorney-clien t privilege

. See id. at 709-10. No one, the White House argues, woul d 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, revolvin g around Upjohn , should demonstrate why we believe the private-attorne y analogyis inapposite. The White House proffers Upjohn as emblematic of the wide sweep of the attorney-client privilege, and we agree with tha t characterization, to a point. In Upjohn , the IRS attempted to subpoen a records of an internal investigation conducted by Upjohn’s general counsel

. The court of appeals rejected Upjohn’s claim of privilege to the exten t that the communications at issue involved lower-level employees outside th e so-called “control group.” The Supreme Court re jected the “control group” test as unnecessarily restrictive, recognizing t hat 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 o f information and the pers on 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 fo r directing [the company’s] actions in response to le gal 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 th e corpora tion in serious legal difficulties, and it is onl y natural that these employees would have the relevan t information needed by co rporate counsel if he is adequately to adv ise the client with respect to such actual or potentia l difficulties.
Upjohn , 449 U.S. at 391 (alterations by Supreme Court). The Court did not specify the precise e xtent of the privilege but specifically rejected the “control group” test. Id. at 396-97.

### -17- As the White House points out, Upjoh n contains strong language about the importance of the attorney-client privilege in encouraging the full an d frank presentation of legal advice to corporations, which helps to insure that corporations wil l 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 s erved, the attorney and client must be able to predict with som e degree of certainty whether particular discussions will be protected.” Id

. at 393. Nevertheless, we believe that important differences between the government and nongovernmental organizations suc h 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 cr iminal liability. (No one suggests t hat any of the conduct under investigation by the OIC coul d expose the White House to civil liability.) A corporation, in contrast, may be subject to both civil and criminal liabil ity for the actions of its agents , and corporate attorneys therefore have a compelling interest i n ferreting out any mis conduct by employees. The White House simply has no such interest with respect to the actions of Mrs. Clinton.

We a lso find it significant that executive branch employees , includ ing attorneys, are under a statutory duty to report crimina l wrongdoing by other employees to the Attorney General. See 28 U.S.C

. § 535(b) ( 1994). Even more importantly, however, the general duty o f public service calls upon government employees and agencies to favo r disclosure over concealment. The difference between the public interest and the pr ivate interest is perhaps, by itself, reason enough to fin d Upjohn unpersuasive in this case. The importance of the public interest in questions of disclosure versus privilege is not unique to this case, fo r 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 aud itor assumes a p ublic responsibility transcending any employmen t re lationship with the client. The independent publi c acc ountant performing this special function owes ultimat e allegiance to the corpor ation’s creditors and stockholders, as wel l as to the investing public. This ‘public watchdog ’ fun ction demands that the accountant maintain tota l independence from the client at all times and requi res complete fidelityto the public trust. To insulate from disclosure a certified public accountant’s interpretations of the client’s financial statements would be to ignore the signifi cance of the accoun tant’s role as a disinterested analyst charged wit h public obligations.

Arthur Young , 465 U.S. at 817-18. The public responsibilities of the Whit e Hous e are, of course, far greater than those of a private accountan t perform ing a service with public implications. We believe the stron g public interest in ho nest government and in exposing wrongdoing by public officials would be ill-served by recognition of a governmental attorneyclie nt privilege applicable in criminal proceedings inquiring into th e actions of public officials. We also believe that to allow any part of th e federal government to use its in-house attorneys as a shield against the prod uction of information relevant to a federal criminal investigatio n
wou ld represent a gross misuse of public assets. See also Jupite r Pai nting , 87 F.R.D. at 598 (recognizing the “pernicious potential” of a gove rnmental attorney-client privilege “in a government top-heavy wit h 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 reco gnize the White House’s concern that “[a]n uncertai n priv ilege, or one which purports to be certain but results in widel y 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 Hous e
assumes that the attorney-client privilege is more predictable ex ante tha n 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, 35 8 (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 o f which may result in disclosure of the conversation. Even so, we believe our holding in this c ase does not make the duties of government attorneys signif icantly more difficult. Assuming arguendo that there is a governmental attorney-client privilege in other circumstances , confidentialitywill suffer only in those situations that a grand jur y might later see fit t o investigate. Because agencies and entities of the government are not th emselves subject to criminal liability, a government attorney is free to discuss anything with a government official--except fo r

### -20-

pot ential criminal wrongdoing by that official--without fearing late r revelation of the con versation. An official who fears he or she may have violated the criminal law and wishes to speak with an attorney i n confidence should speak with a private attorney, not a government attorney

.

Nor do we foresee any likely effect of our decision on the abilit y of a government lawyer to advise an official who is contemplating a future
course of conduct. If the attorney explains the law accurately and th e official follows that advice, no harm can come from later disclosure of th e advice, which would b e unlikely anyway. Like the Nixon Court, “we cannot conclude that advisers will be moved to temper t he candor of their remarks by the infrequent occ asions of disclosure because of the possibility that
suc h conversations will be called for in the context of a crimina l 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 att orneyclient privilege to thwart the grand jury’s subp oena, we must consider the assertion, made by both the White House and Mrs. Clinton, that the presenc e of Mr. Kendall, Mrs. Clinton’s private attorney, during her meetings with the White House attorneys affects the calculus i n this case. We disagree.

The White House and Mrs. Clinton rely on the common-interes t 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 no n-litigated matter are represented by separate lawyers an d they agree to exchange information concerning the matter, a commun ication of any such client that otherwise qualifies a s privileg ed . . . that relates to the matter is privileged a s aga inst third persons. Any such client may invoke th e 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 requ irement that lawyer-client communications must b e made in confidence in order to be protected by the privilege. See Restatement § 121; John Morrell & Co. v. Local Union 304A, Unite d Food & Commercial Workers , 913 F.2d 544, 555-56 (8th Cir. 1990 ) (applying the doctrine), cert. denied , 500 U.S. 905 (1991).

One p ossible interpretation of the meetings at issue here is tha t 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 o fficial capacity), and the White House’s officia l attorneys, in a type of four-sided conference. We will assume this scenario as a factual framework for the possibl e application of the common-interest doctrine. We conclude that the doctrin e is inapplicable, for two distinct reasons.

First, as our discussion in Part III-A, supra , demonstrates, th e White House’s assumption that communications made by Mrs. Clinton to Ms. Sherburne and Ms. Nem etz “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-

avoidi ng prosecution, or else minimizing the consequences if the OI C decide s to pursue charges against her. One searches in vain for an y interest of the White House which corresponds to Mrs. Clinton’s personal interest. The common interest may be “either le gal, factual, or strategic in character,” id. cmt. e, but no legitimate int erest 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 an d accurate understanding of the facts surrounding the variou s incidents under investig ation and of the legal consequences of those facts; both had an interest in ensuring that there was no distortion of these even ts 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 b etween 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 i s inv estigating “official misconduct,” and the ongoing Whitewater-relate d investigations by the RTC, FDIC, and Congress as factors creating a common interest between them.

We have no doubt that the White Hous e and Mrs. Clinton are concerned with understanding fully the facts involved in the OIC’s investigation, no r that dividing responsibility between the personal attorneys and White Hous e
co unsel can be a difficult task. And surely the multiplicity o f investigating authorities only complicates the lives of these attorneys. But these justificati ons amount to no more than an assertion that “we all want to obey the law.” We do not believe the common-interest doctrin e stretches that far.

### -23- As for the suggestion that the OIC is investigating “officia l misconduct,” thus triggering the interest of the White House, we believe there is a difference between “official misconduct”--whatever that may be-

- and “mi sconduct of officials.” The OIC is actually investigating th e actions of individuals, some of whom hold positions in the White House

. The OIC ’s investigation can have no legal, factual, or even strategi c effect on the White H ouse as an institution. Certainly action by the OIC may occupy the time o f White House staff members, may vacate positions in the Whit e House if any of its personnel are indicted, and may harm th e President and Mrs. Cl inton politically. But even if we assume that it is proper for the White House to press political concerns upon us, we do not believe t hat any of these incidental effects on the White House ar e sufficient to place that governmental institution in the same canoe as Mrs

. Clinton, whose personal liberty is potentially at stake.

The W hite House argues that it must be permitted to invoke th e attorney-client privilege “‘not for the benefit of the President as a n 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 Republi c coincide with her personal interests, the attempt must fail.

C.

We next c onfront the conclusion of the District Court that Mrs

. Clinton’s reasonable belief that her conversations with White House lawyer s
were privileged is sufficient to prevent their disclosure. Because w e 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 generallyRestatement § 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 generallyRestatement § 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 cl ient’s reasonable beliefs may be relevant. For example, courts have found th e privilege applicable where the client reasonably believed that a poseur wa s in fact a lawyer, reasonably believed that a lawyer represented th e 11 client rather than another party, or reasonably believed that a 12

conversa tion with a lawyer was confidential, in the sense that it s substance would not be overheard by or reported to anyone else. Al l 13 these situations involve, in essence, reasonable mistakes of fact, none of which is applicable here. Because Mrs. Clinton does not claim that sh e believ ed that the White House lawyers represented her personally, he r 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, abou t 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 a ctor’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 th e warrant requirement are perhaps the best examples. Withou t delving into the policy reasons behind these exceptional lega l 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 uphel d pri vilege 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 p rivilege to avoid complying with the subpoena issued in this case by a fed eral grand jury calling for the notes in question of Ms. Nemetz and Ms. Sherburne.

IV.

The Distr ict Court held that the work product doctrine also applied in this case to prote ct 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 opponen t to materials “prepare d 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 ey e toward litigation”); Restatement § 136(1) (material “prepared by a lawyer for litigation then in progress or in reasonable anticipation of futur e litigation”). The White House’s claim of work product immunity founders on the “anticipation of litigation” requirement of the doctrine.

Courts ha ve applied work product immunity in a variety of lega l contexts. See Hickma n , 329 U.S. at 513-14 (civil case); United States v. Nob les , 422 U.S. 225, 238 (1975) (criminal case); In re Grand Jur y Proceed ings (Duffy) , 473 F.2d 840, 846-47 (8th Cir. 1973) (grand jur y investigation). The essential element of each case, however, is that the attorn eywas preparing for or anticipating some sort of adversaria l proceeding involving his o r her client. The White House’s argument that 15 its la wyers were preparing for the OIC’s investigation is simpl y 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 inve stigation on account of their individual acts, but we know of n o authority allowing a client such as the White House to claim work product immunity for material s merely because they were prepared while some other person, such as Mrs. Clinton, was anticipating litigation. Cf. In r e 16 California Pub. Utils. Comm’n ,

### -27-

892 F.2d 778, 781 (9th Cir. 1989) (concluding th at non-party to litigation may not assert work product doctrine).

As a fall-back position, the White House suggests that anticipate d congressional hearings will suffice as well as anticipated litigation. Th e Restateme nt seems to agree with the White House. See Restatement § 13 6 cmt. h (stating that litigation “includes a proceeding such as a grand jur y or a coroner’s inquiry or an investigative legis lative hearing”). Neither the White House, Mrs. Clinton, nor the Restateme nt cites any authority for this p roposition, however, and we have discovered none. Cf. P. & B
. Mar ina, L.P. v. Logrande , 136 F.R.D. 50, 58-59 (E.D.N.Y. 1991) (findin g let ters from lobbyist to client not protected work product), aff’d , 98 3 F.2d 1047 (2d Cir. 1992) (table). Even if it co uld be said that the White House anticipated a congressional investigation of the White House itself, rather than merely of individuals who work at th e 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 a n investigat ion is political harm. As in our discussion of the common

interest 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 o f work product immunity. See Restatement § 139(2). Based on the showing th e White House has made here, we cannot conclude th at the work product of its attorneys may be kept from the OIC.

### -28- V.
At oral argument, we raised sua spon te 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 conclude d that our decision must be applied to the parties now before us.

In Har per v. Virginia Dep’t of Taxation , 509 U.S. 86 (1993), th e Supreme Court settled one major question of the retroactivity of decisions :

When thi s Court applies a rule of federal law to the partie s before it, that rule is the controlling interpretation o f federal law and must be given full retroactive effect in al l cases still open on direct review and as to all events , regardl ess of whether such events predate or postdate ou r announcem ent of the rule. . . . In both civil and crimina l cases, we can scarcely permit ‘the substantive law to shift and spring’ according to ‘the particular equities of individua l parties’ claims’ of actu al reliance on an old rule and of harm from a retroactive application of the new rule.

Id. at 9 7 (citation and alterations omitted); see also Griffith v

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

The Court ’s recent decisions have not forced it to contend with the permissibility of “pure prospectivity,” that is, the practice of announcin g
a new rule but applying it neither to the parties involved in the watershe d case nor to others similarly situated. The Cour t 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 ou r power. See Harper , 509 U.S. at 97 (citing “‘bas ic norms of constitutional adjudication’” (quoting Griffith , 479 U.S. at 322)); id. at 106 (Scalia, J., concurring) (“prospective decisionmaking is quite incompatible with th e judicial power”).

The most relevant precedent also suggests that it is appropriate to apply our decision in this case. In Trammel , th e Supreme Court considered the we ll-established common law privilege against adverse spousa l testi mony. See Trammel , 445 U.S. at 43-46 (describing history o f priv ilege). The Court had specifically affirmed the vitality of th e privilege in Hawkins v. United States , 358 U.S. 74, 77-79 (1958), and the Proposed Rules of Evi dence had recommended continuation of the privilege. See Propo sed Fed. R. Evid. 505(a), 56 F.R.D. at 244. Nevertheless, th e dis trict court permitted Trammel’s wife to testify against him over hi s objection, and the court of appeals affirmed his conviction. See Trammel , 445 U.S. a t 42-43. The Supreme Court, by a unanimous vote, took th e privilege away from the defendant-spouse, leavin g it to the witness-spouse to decide whether to testify. See id. at 53. Despite this clea r
overr uling of its earlier precedent, the Court applied the new rule t o Trammel’s case and affirmed his conviction. We believe the same treatment is appropriate in thi s case, which involves no such drastic change in the law; in fact, because this is a case of first impression, our decisio n involves no change in the law at all.

In short, a purely prospective decision is little more--perhap s nothing mo re--than an advisory opinion. We decline to render such a n opinion and conclude that our holding necessarily applies to the Whit e House in this case.

### -30- VI.
To sum up, we hold that neither the attorney-client privilege n or the attorney w ork product doctrine is available to the White House in th e 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 institutiona l capacity of the President of the United States t o function with the advice of legal co unsel. The clarity of this point is made evident by th e subp oena, which demands notes taken by “the Office of Counsel to th e President.” (Subpoena Rider at 1.) Because of this important fact, I woul d apply United States v. Nixon , 418 U.S. 683 (1974), rather than the positio n urged by the Independ ent Counsel (IC). I would not follow Nixon for some purposes, and disregard it for others.
Federal Rule of Evidence 501 require s that we decide whether federal common law extends th e attorney-client privilege to the White House. The White House possesses an attorney-client privilege under proposed Federal Rul e of Evidence 503, sometimes called Supreme Court Standard 503 (Rul e 503). Rule 503 accurately states the federal common law regarding th e attorn ey-client privilege, as this court has consistently stated in th e past. The following portion of Rule 503 is pert inent 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 or ganization or entity, either public or private , who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtainin g 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 b e disclosed to third perso ns other than those to whom disclosure is in furtherance of the rendition of professional lega l ser vices to the client or those reasonably necessary for th e transmission of the communication. (b ) General rule of privilege. A client has a privilege t o ref use to disclose and to prevent any other person fro m disclosing confidential communications made for the purpose of fa cilitating the rendition of professional legal services t o the client, (1) between himself or his representative and his lawyer or his lawyer’s representative, or (2) between hi s lawyer and the lawyer’s representative, or (3) by him or hi s lawyer to a lawyer representing another in a matter of common interes t, or (4) between representatives of the client o r 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 dis agree 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 princ iple 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 a ll types of cases, including criminal cases, so that the White House can comply with the law. The privilege advances the publi c interest by assuring that the White House will r eceive well-founded, factspecif ic legal advice based upon candid responses from White Hous e officials. According ly, 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 Nixonhave been observed. Unlike the IC, I believe Nixonovercomes, bu t does not erase, the privilege. Nixon requires us to conclude that th e Presi dent’s general need for confidentiality, expressed here by th e attorney-client privilege, is overshadowed by the grand jury’s general nee d for evidence of the truth. Still, Nixondoes no t, as the IC urges and the maj ority finds, permit us to assume that the White House lacks th e 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 threshol d showing before the distr ict court that the documents are: (a) specifically needed; (b) relevant; and (c) admissible; (2) assuming such a showing has been made, the documents ar e fir st delivered to the district judge, who will examine th e documents in chambers, to decide if in fact the documents are releva nt and admissible, and irrelevant documents will b e 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 se rved by a grand jury is no more important than t he public purpose served by a criminal trial. Thus, I disagree with the court’s failure to require the IC to make the same typ e of showing on a motion to compel a response to a grand jury subpoen a directed at the White House as would be required by Nixon for a tria l subpoena.

Furthe rmore, because Mrs. Clinton also has an attorney-clien t privilege in her personal capacity, her privilege, implemented in this cas e by the “common interest” part of the rule, shoul d 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 ha s various constitutional rights that are implicated by intercepting he r privileged communications without warning and then revealing thos e communications to a prosecutor; and (2) Nixon did not attempt to balance the “p ublic interest” against the “individual interest” and thus canno t serve as precedent fo r the dispute between the IC and Mrs. Clinton in her personal capacity.
Finally, because we should now decla re 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 a t her peril in the future. She would be informed from our opinion that such consultations might n o longer be protected since the other

### -34-

party to h er conversations (the White House and its lawyers) could b e 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 b e “intended” by Mrs. Cl inton as “confidential” under Rule 503(a)(4) because she would know and un derstand that her communications could be “disclosed to third persons.”

Ac cordingly, I would affirm the district court’s properly cautiou s decision refusing to enforce the subpoena. Yet I would make it clear that the White House attorney-client privilege gives way to a grand jur y subpo ena issued under the supervision of the IC if the procedura l 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-clien t 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, fidel ity to Nixon requires that the White House privilege give way to the limited extent of a subpoen a 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 all ow the IC to make an end run around the procedural protection s 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 Hous e 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

Federa l 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 o f attorney-client privilege.

Promulgated by the Supreme Court in November 1972, Rule 503(a)(1 ) pla inlygrants the White House the attorney-client privilege. The rul e extends the privilege to “organization[s] or entit[ies], either public or private.”

The subpoe na was directed to the “White House.” Thus, the I C recogn ized the “White House” as a discrete governmental organization o r entity protected by the unambiguous language of Rule 503(a)(1)

. Consequently, if Rule 503 applies, the White House has the privilege i t asserts.
To avoid Rule 503, it is argued that the rule does not apply because (1) C ongress did not enact it; (2) it does not apply to criminal case s involving governmental entities; (3) the public interest is not served whe n
a gover nmental entity asserts the privilege. None of these argument s suggest a valid reaso n 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 reg arding 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 “‘a n
accura te definition of the federal common law of attorney-clien t privilege.’” In Re B ieter Co. , 16 F.3d 929, 935 (8th Cir. 1994) (quoting 2 Jack B. Weinstein et al., Weinstein’s Evidence ¶ 503[02], at 503-1 7 (1975)) (applying rule and finding the privilege applied to partnership an d 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 “cou rts have relied upon [Rule 503] as an accurate definition of the federal common law of attorney-clien t privilege” and affirming order quashing subpoena for taped statements made by client at direction of a lawyer); Citibank, N.A. v. Andros , 666 F.2 d 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 privileg e belonged to trustee of a corporation and could be waived by him).

Other circuits have come to the same conclusion. See, e.g. , Tennenbaumv. Deloitte & Touche , 77 F.3d 337, 340 (9th Cir. 1996) (th e 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 att orney-client privilege applied in the federal courts before the adoption of the federal rules) (citations omitted); Unite d 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-clien t privilege) (citations omitted).

Importan tly, the Supreme Court proposed the Rule. This court, an d others, frequently refers to the Rule as “Supreme Court Standard 503. ” See, e.g. , In Re Bieter Co. , 16 F.3d at 935; Uni ted 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.

Dis tinguished commentators have also reached the same conclusion : “Standard 503 is a restatement of the traditional common law attorney

client privilege that had been applied in the federal courts prior to the adop tion of the federal rules. Consequently, despite the failure o f Congress to enact a detailed article on privileg es, Standard 503 should be referr ed to by the courts.” 2 Jack B. Weinstein et al., Weinstein’ s Eviden ce ¶ 503[02], at 503-19 (1996) (citing, among other cases , Diversifie d 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 Dr aft 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 th e government has the same privilege as its private counterparts).

Therefo re, the failure of Congress to adopt Rule 503 is no t significant. The Rule is an accurate definitionof 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 Whit e House.

To the extent it is suggested that the privilege has never bee n extended to a federal governmental entity in a criminal case brought b y another federal governmental entity, the point i s meaningless. The reason there are no such cases is obvious: intra-governmental disputes in th e federal criminal arena seldom arise, regardless of whether the attorneyclient privilege is involved.

Furth er, there is certainly no case which denies the privilege i n matters s uch as this. In fact, the only remotely relevant federal cas e implic itly acknowledged the existence of the privilege for a stat e governmental entity in a federal criminal invest igation. In Re Grand Jury Subp oena , 886 F.2d 135, 137-38 (6th Cir. 1989) (“city council” was a “client” for the purpose of attorney-client priv ilege when a federal grand jurysought documents from the City of Detroit and the city asserted the privilege).

### -39- Most imp ortantly, there is no reason to pretend the privilege doe s not exist simply because the White House asserts it during a crimina l investigation. As will be discussed in more detail later, Nixon did not take this approach. Rather, as the Nixoncourt made clear, the appropriat e app roach is to balance the governmental privilege asserted by the Whit e House (whether it be the attorney-client privilege or some other privilege ) agains t the competing governmental interest asserted by the IC, th e ultimate goal being to promote the “public inter est.” 418 U.S. at 707-13.

Consequen tly, 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 gov ernmental entities, particularly the White House, advances the public interest.

Since Rule 503 was proposed, the federal courts have consistentl y recognized that gover nmental 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) (recogn izing 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 discover y request directed toward a government”) (citations omitted); Jupite r 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 statin g tha t “[c]ourts generally have accepted that attorney-client privileg e applies in governmental context”) (collecting federal cases dating from an d after 1963) (citations omitted).

### -40- While it is true that none of these cases dealt with the precis e issue in this case, one cannot ignore the fact that the courts hav e consistentlyheld that the public interest is furthered by extending the privilege to governmental entities. As a result, we should be ver y skeptical of the IC’s argument that requires us to ignore a genera l principle.

Since at least 1965, Congress has affirmatively recognized th e government’s need to be protected by the attorney-client privileg e regarding the product ion of documents. NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 136, 154 (1975) (applying 5 U.S.C. § 552(b)(5)) (FOIA case). Th e Court observed that the legislative history, authored in 1965, declared th e exemption “‘would include . . . documents which would come within th e attorney-client privilege if applied to private parties.’” Id. (quoting S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965)). Consequently, believin g that Congress would f ind recognition of the privilege to be a surprise is impossible. The proposed Restatement of the Law (Third) Governing Lawyers als o recognizes that the a ttorney-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 th e 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 an d after 1942) (citations omitted) (emphasis added). The rationale i s obvious: “The privilege aids government entities and officers in obtainin g 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 attorney

2 

### client privilege was extended to governments at “common law” agree “mo st” courts have recognized that governmental entities ar e entit led to the privilege. 24 Charles Alan Wright & Kenneth W

. Graham, Jr., Federal Practice and Procedure , § 5475, at 125 (1986). Thes e commentators likewise predict the courts will continue t o recognize that the privilege e xtends to governmental entities. Id. at 128. (“[I]t seems likely that some form of privilege fo r governmental clients will be r ecognized by federal courts applying Rule 501.”) (citations omitted.)
-41- coming nearly twenty-five years after the Suprem e Court proposed Rule 503, lends added support for the finding that a governmental attorney-clien t privilege advances, rather than detracts from, the public interest. 2

Althoug h the IC now holds the opposite view, the United States ha s previously and consistently taken the position t hat governmental entities, particularly the President and his advisers, are protected by the attorney

client privilege. On e 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 Unite d States, Assistant Attorney General Theodore B. Olson, of the Office o f Legal Counsel (OLC), advised the Attorney General that “[a]lthough th e attorney-client privilege traditionally has beenrecognized in the context of private attorney-c lient relationships, the privilege also functions to protect communications between government attorn eys and client agencies or departments, as evidenced by its inclusion in the FOIA, much as it operate s to pro tect attorney-client communications in the private sector. ” Memorandumfor 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 at torney-client privilege in corpo rate context, rejecting “control group test,” and holding tha t detailed information provided to corporate counsel by corporate managers, who were not necessarily policy makers, regardin g questionable payments by corporation was protected from an IRS document s ummons under the attorneyclient privilege ). Att’y Gen.’s Mem. at 495-96. 3

According to OLC, the President, no less than the Upjohn corpor ation, required the attorney -client privilege so he could comply with the law by insuring that subordinates talked candidly with counsel. Id. OL C reasoned:

[I]t is likely that, in most instances, the ‘client’ in th e cont ext of communications between the President and th e Attorney General, and their respective aides, wouldinclude the broad sc ope of White House Advisers in the Office of th e Presid ent. The ‘functional’ analysis suggested by Upjoh n focuses on whether the privilege would encourage th e communication of relevant and helpful information f rom advisors mos t familiar with the matters on which legal assistance i s sou ght, as well as whether the privilege is necessary t o protect and encourage the communication of frank and candi d advice to those responsible for executing the recommende d courses of action.

### -43- Id. at 496.

If thi s court has to make a choice when discovering the common la w
as applied to the White House, we ought to choose the analysis contained in the Memorandum for the Attorney General . I a m particularly opposed to the adoption of the position urged by the IC bec ause it is contrary to the long-standing policy of the Department of Justice.

To avoid Upjohn , it is argued that the White House is differen t from
a cor poration in three distinguishing respects. It is argued that th e White Ho use cannot be prosecuted for a crime. The IC also argues tha t White House lawyers, unlike counsel for corporations, have a statutor y responsibilityto report crimes. Finally, it is claimed that the Whit e Ho use, as opposed to a corporation, has a duty to further hones t government.

Sinc e the Upjohn decision was not based upon the fact that a corp oration could be prosecuted for a crime, it is an irrelevancy t o distinguish Upjohn on that basis. In Upjohn , the government pursued the exact opposite of the IC’s argument here that th e privilege does not apply because the White House cannot be prosecuted for a crime. In Upjohn the go vernment argued that because corporations were subject to crimina l liability corporations had a sufficient incentive to comply with the law and, therefore, corporations did not need the attorney-client privileg e because they would seek legal advice in any event. The Court rejected thi s 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 maker s legitimately need their lawyers to know the facts in order

### -44-

for the co rporation to comply with the law, and, absent the corporat e attorney-client privilege, the fact-finding process would be impaired alon g with the corporation’s ability to conform its conduct to the law afte r receiving fact-based legal advice. Id. at 389-97. Likewise, the Cour t reasoned that even minor corporate employees nee ded candid legal advice to insure that the corporation complied with the law, and absent the privileg e
suc h advice would not likely be forthcoming. Id. The same reasonin g applies to the White House.
I also reject the related argument t hat we can distinguish Upjohn on the basis that a White House official who fears he or she may have violate d the crimin al law should speak to a private attorney, not a governmen t lawyer. This argument misses the point for extending the privilege t o organizations.

The organ izational attorney-client privilege, be it asserted by the White Hous e or Upjohn, is intended to encourage officials, who may b e 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 nononsen se legal advice generally depends upon confidentiality, an d corporations need such advice if they are to com ply with the law. In this regard, t here is no reason to presume that the White House is differen t from Upjohn. The argum ent that government lawyers, unlike corporate counsel, are required by statute to report crimes and this fact distinguishes Whit e House counsel from corporate counsel, is built upon a false premise. Whil e it is true that 28 U.S.C. § 535(b) requires governmental employees t o rep ort crimes, the Department of Justice has properly reasoned that th e statute must be inter preted in conformity with, not in opposition to, the attorney-client

### -45-

priv ilege. Antonin Scalia, Assistant Attorney General, Office of Lega l Counsel, Memorandum for the Deputy Attorney General re: Disclosure o f Confid ential Information Received by U.S. Attorney in the Course o f Representing a Federal Employee at 2 (Nov. 30, 1976), (“[N]o information the employee conveyed to the Assistant U.S. Attorney in connection with th e civil action may be u sed by the Department to prosecute the employee; nor may it be turned over to anyone else, such as the employing agency, for us e against him.”), reprinted in Appellee’s App. Assistant Attorney General Scalia stated: “Giventhe absence of any discussion of the subject in the leg islative history [regarding section 535(b)], it would in our view b e inappropriate to infer a congressional purpose to breach the universally recognized and longstanding confidentiality of the attorney-clien t 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 th e attorney-client privilege overrides § 535(b) is tha t confidentialityof communications between client and lawyer is essential if Department attorneys are to be able to provide adequate lega l representation.” Ralp h W. Tarr, Acting Assistant Attorney General, Office of Legal Counsel, Duty of Government Lawyers Upo n 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 OL C 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 arg ued, the attorney-client privilege should be ignored because i t 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 privileg e is not to adopt a “bad government” position though the existence of such a privilege may inhibit the IC from obtaining al l the information he might like by making a demand upon the White House. As Upjohn recognized, the attorne y-client privilege serves the public interest by promoting th e “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 Whit e House, especially

bec ause it has a duty to promote honest government. We should not premise our decision upon the assumption that the IC is the onl y guardian of just government.

In short, I reject the argument that the attorney-client privileg e in the ha nds of the White House is antithetical to the interests o f justice, though I acknowledge that the privilege may impede the work of th e IC. When a prosecutor asks the court for help i n 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 th e contrary, the court should carefully balance, as Nixon did, th e compe ting governmental interests, subject to the procedural protection s that Nixon carefully set forth.

e. Summary

Rule 5 03 is an accurate statement of the common law. The rule i s therefore definitive, and we should apply it.

### -47- 2. Application of Rule 503

Having determined that Rule 503 is definitive and that th e gove rnmental attorney-client privilege set forth in Rule 503 generall y promotes the public interest when applied to the White House, we shoul d apply the rule to this case. The White House possesses the attorney-clien t 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, acti ng through Mrs. Clinton in her representative role as First Lady. As noted earlier, Rule 50 3 expl icitlyextends the attorney-client privilege to “organizations” o r “entities” that are “public” in nature. The rul e 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 b e 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 othe r First Ladies before her, has a widely recognizedrole as an advisor to the President and is generally considered to be a member of the President’ s inner cir cle.” Slip. Op. at 10. The district court’s finding is no t clearly wrong.

### -48- Legally, “ Congress itself has recogn ized 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 o r employee of federal g overnment,” relying on and quoting 3 U.S.C. § 105(e) (emphasis in original)). See also , Att’y Gen.’s Mem. , 6 Op. Off. Lega l Counsel at 496 (attorney-client privilege covers the “broad scope of White House advisers in the Office of the President”).

As a “mem ber of the President’s inner circle” of advisers, Mrs

. Cl inton is precisely the type of organizational “representative” th e 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 m andamus and sustaining invocation of attorney-client privilege by partnership; applying Upjohnto a p erson who, although not an employ ee of the partnership, was a consultant; reaching this resul t because: (1) communications were made for the purpose of seeking lega l 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 communicati on be made for the purpose of securing legal advice; (4) subject matter of discussion was within scop e 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 Whit e Hous e counsel to or from the First Lady. See Rule 503(a)(2)&(b)(1)

. Upjohn makes clear that the privilege goes

### -49-

both w ays, 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 Fi rst Lady to White House counsel are protected just the same a s communications to the First Lady from White House counsel.

c. Confidential Communication

Given the undisputed facts presented in the declaration of Whit e House counsel, (IC Ap p. 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 note s
were intended to be “confidential” within the meaning of Rule 503(a)(4). These communications were not intended to be revealed to third parties, an d 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 o f Justice, (3) the Supr eme Court’s opinion in Upjohn , and (4) the fact that Nixo n did not rule on a White House assertion of the attorney-clien t 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 pres ence of Mrs. Clinton’s personal lawyer does not change th e result

. As will be discussed more fully later, Mrs. Clinton, in he r personal capacity, and the White House, as an entity represented by th e First Lady in her official capacity, shared a legal “matter of commo n interest.” Rule 503(b)(3) prevents

### -50-

disclosure of communications “by [a client] or his lawyer to a lawye r representing another in a matter of common interest.”

Among ot her things, both parties (the White House and Mrs. Clinto n personally) needed to respond carefully and cand idly to the IC; therefore, both requ ired the advice of legal counsel. As a result, Rule 503(b)(3 ) expl icitlyprotects communications between White House counsel and th e Firs t Lady even though a lawyer (Mrs. Clinton’s personal lawyer) fo r another party (Mrs. Clinton in her personal capacity) was present.

d. Facilitating the Rendition of Legal Services

Finally, the undisputed evidence est ablishes 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 su bject of the meeting that generated the first set of note s 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 me eting that generated the second set of notes was the discovery of billing records involving Mrs. Clinton which were found at th e Whi te House and turned over to the IC as relevant evidence in hi s investigation. (IC App. at 28-30 ¶¶ 18-21, 35-37 ¶¶ 5-7.)
Both meetings, and the notes regarding them, pertained to event s 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. Fo ster and her role as First Lady regarding the discovery of

### -51-

the billing records. Moreover, the events that were the subject of these meet ings between the First Lady and White House counsel are directl y related to issues the IC was authorized to investigate concerning the Whit e House as an instituti on. Slip Op. at 2-3. (IC authorized to investigate death of former Deputy White House Counsel Vince nt W. Foster and discovery of Rose Law Firm billing records in the White House residence.)

Under these circumstances, it is reasonable to assume that th e President (or another principal at the White House) directed the Firs t Lady’s communication with White House counsel for the purpose of securing lega l advice for the White House. In Re Beiter Co. , 16 F.3d at 938-3 9 (making similar assumptions in context of a partnership consultant).
Ignoring for the moment Mrs. Clinton ’s personal stake in the matter, the Wh ite House as a “client” had a legitimate and independen t inst itutional reason to pursue the two conferences between it s “representative” (Mrs. Clinton) and its “lawyers” (White House counsel) fo r the “purpose of facil itating the rendition of professional legal services to the client [the White House].” Rule 503(b)(1). White House lawyers ha d a legitimate institutional need to know what the client’s “representative” knew i n order to advise the “client,” including the client’ s “representative,” what to do or not do. In particular, the White House ha d
a leg itimate institutional need for the advice of its lawyers so that , actin g through people, including the First Lady, as it must, the Whit e House could carefully and candidly respond to the IC. The decision to turn over billing records to the IC, records tha t 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 an d consult with the “client’s representatives,” inc luding individuals such as the First Lady. On January 4, 1996, Jane C. She rburne, special counsel to the President, learned that Ms. Carolyn Huber, a White House employee, had located in the White House residence a copy of b illing records relating to the work performed by attorneys at the Rose Law firm, includin g Mrs. Clinton, for Mad ison Guaranty. (IC App. at 28 ¶ 18.) Ms. Sherburne, in con sultation with Mrs. Clinton’s personal lawyer, decided that th e records should be promptly turned over to the IC, the Senate Whitewate r Committee, the House Banking Committee, the FDIC and the RTC, and th e records were in fact turned over to those governmental bodies. ( Id. ) The production of these documents caused the IC, among others, to launch a n investigation relating to the finding of the billing records. ( Id. )

As the S upreme Court has recognized, the attorney-client privilege is extended to organizations so the people who ultimately effect the polic y of an organization can comply with the law by obtaining information from subordinates and then directing those subordinat es to comply with the law. Upj ohn , 449 U.S. at 390-93. The handling of the billing records her e proves why the Upjohnrationale for extending the attorney-client privileg e to corporations, acting as they must through peo ple, is also applicable to the White House.

e. Summary

There was (1) a communication to or from Mrs. Clinton in her role as

an “in ner-circle” representative of the client White House, Rul e 503(a)(1)&(b)(1); (2) to or from a White House l awyer, Rule 503(a)(2); (3) intended to be confidential, Rule 503(a)(4); (4) for the purpose o f seeking, obtaining, or providing legal

### -53-

assist ance to the client White House, Rule 503(a)(4)&(b)(1). Thes e findings establish th at 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 privileg e, two issues must be resolv ed. First, we must decide whether the IC could ever be entitled to the no tes when the White House asserts the attorney-client pr ivilege. Second, we must address the issue of what procedura l protections must be e mployed to protect the White House’s legitimate need for confidentiality, assuming the privilege is not an absolute bar and tha t produc tion may be required under certain circumstances. Both inquirie s require a careful balancing of the interests of the White House and the IC to preserve and protect the public interest that both governmental entitie s seek to promote.

1. Nixon’s Balancing Test

While the White House generally has the attorney-client privilege it asserts he re, this case is unprecedented. Never have the courts bee n confr onted with (1) a motion by an independent counsel (himself a singularly unique cre ature 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 woul d 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 tha t presidential confiden tiality be afforded the greatest possible protection consis tent with the fair administration of justice. Nevertheless, th e Cou rt also held that the President was required to turn over tape d conversations to the district court pursuant to a trial subpoena issued at the requ est of a special prosecutor under Federal Rule of Crimina l Procedure 17(c), despite the President’s asserti on of Executive Privilege.

The special prosecutor had made a preliminary showing of specifi c 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.

Th e Court then attempted to balance the twin concepts of “publi c interest” asserted by the President and the spec ial prosecutor. The Court stated that “when the ground for asserting privilege as to subpoenae d mat erials sought for use in a criminal trial is based only on th e gener alized interest in confidentiality, it cannot prevail over th e fundamental demands of due process of law in the fair administration o f criminal justice.” Id. at 713. As an additional precaution, the Court required the district cour t to con duct an in camera examination of the tapes after the order fo r prod uction was issued, but before they were turned over to a specia l prose cutor. The purpose of this examination was to decide whether th e tapes were actually relevant and admissible. Now, a s in Nixon , both the White House and the IC assert that th e “pu blic interest” warrants a finding for their particular position. A s 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 disput e comes down to this: Is the White House’s attorney-clien t privilege generally more important than a grand jury’s crimina l investigation of the White House?

At this elevated level of abstraction, Nixon teaches that th e Presi dent’s general need for confidentiality (expressed here by th e attorn ey-client privilege) is outweighed by a grand jury’s need fo r evidence of the truth. The Department of Justice has taken a similar view 4 in th e past. See Att’y Gen.’s Mem. , 6 Op. Off. Legal Counsel at 487-8 8 (“The more generalize d 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 th e coordinate branches of their constitutionally assigned functions.”) (citin g Nixon ).

The White House has not articulated the specific harm to the public interest that would o ccur if this subpoena was enforced. Nixon addressed
a similar issue and concluded that “[a]bsent a claim of need to protec t military, diplomatic, or sensitive national security secrets, we find it difficult to accept t he argument that even the very important interest in confidentialityof Presidential communications of such material i s signif icantlydiminished by production of such material for in camer a inspection with all the protection that a district court will be obliged to provid e.” Id. at 706. Therefore, I would find that, assuming th e procedural protections afforded the White House by Nixon are observed, the attorney-client privilege may be invaded. 5

### -56- This is not a conclusion to be reach ed lightly. The White House has a strong argument tha t an attorney-client privilege which is not absolute is no privilege at al l. Upjohn , 449 U.S. at 393. Moreover, as discussed in mor e detail later, Nixon specifically recognized that the attorney

clien t privilege was an exception to the general rule that “the publi c . . . has a right to every man’s evidence.” 418 U.S. at 709-10.

Neverthel ess, Nixon ultimately teaches that the number of times the President ’s confidences may be invaded will be few. The only time suc h confid ences may be probed is when the procedural protections carefull y articulated by Nixonhave been satisfied. Accordingly, the attorney-clien t priv ilege, while not absolute, will retain vigor for the White Hous e bec ause the privilege will be overcome only infrequently and only afte r 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 do ne 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 t o invade the White House attorney-client privilege to obtain the facts

. Upjohn forcefully made this point:

### -57- Her e the government was free to question the employees wh o communicated with Thomas [corporate counsel] and outsid e counsel.

. . . While it would probably be more convenient for the go vernment to secure the results . . . by simpl y sub poenaing 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 Nixonclearly did, 418 U.S. at 700-02 , 713-14, s uch a requirement would (1) prevent the use of a grand jur y subpoena as part of an improper “fishing expedition” and (2) insure that the Whi te House attorney-client privilege was not lightly overturned

. Fidelity to Nixonrequires that we approve the i nvasion of the White House attorney-client privilege when absolutely necess ary, 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 o f the fact that Nixoninvolved a trial subpoena an d this case does not. The IC further points out that the preliminary showing requirement of Nixonwa s (in part) based upon Fed. R. Crim. P. 17(c) which deals with tria l subpoenas. Two responses make the IC’s arguments unpersuasive.
Initially, Nixonrepeatedly cautions that the unique interests of the Presidency, not merely Rule 17(c), warrant active judicial supervision wit h
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 th e [pending criminal] case.’” Id.

### -58-

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 j ury subpoena is more important than a criminal trial subpoena such that the procedures required by Nixon should be cast aside when the IC decides t o cause the issuance of grand jury subpoena aimed at the White House.
Given the difference between a grand jury proceeding and a tria l, the need, relevance and admissibility standard wouldbe judged considering the nature of the proceeding. For example, treating impeachment evidence more liberally might be appropriate. Compare Nixon , 418 U.S. at 701. Nixonlef t the se issues to the “sound discretion of the trial court since th e necessity for the subpoena most often turns upon a determination of factua l issues.” Id. at 702. Nevertheless, the investigative nature of a gran d jury is no reason for the wholesale disregard of the protections that Nixo n affords the unique status of the Presidency.

Even a favorable ruling for the IC at the first stage of th e proceedings would not mean that the IC would eve r 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 , 41 8 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.
-59- With the notes before it, the court would (1) determine whether the 6 notes were relevant and admissible; (2) ensure t hat they were treated with the sensitivity any P residential papers command; and (3) require that the irrelevant portions of the notes (if any) be promptly returned to the Whit e House under seal. Id. The White House is entit led to similar protections whe n served with a grand jury subpoena that invades the attorney-clien t privilege, and I disagree with the refusal to extend such protection to th e White House.

3. Threshold Showing

The White House contends the IC has not made a sufficient initia l showing of specific need, relevance, and admissibility. The district cour t did not reach this is sue. 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 accidentall y made the required showing.

III. Mrs. Clinton

Mrs. Clin ton has an attorney-client privilege that protects against disclosure of the notes. However, as noted earlier, this court should als o rule for the first ti me that the White House privilege must give way to a grand jury subpoena issued under the supervisionof an independent counsel if the procedural pro tections of Nixon are satisfied. Consequently, once Mrs. Clinton has been

### -60-

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
ev ery circumstance, consistent with Rule 503(a)(4) Mrs. Clinton wil l 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 i s enti tled to the protections of the attorney-client privilege regardin g discu ssions with her private lawyers. Slip. Op. at 12 n.5. The IC ca n take no other position. Rule 503(a)(1)&(b)(1).

The IC ap pears to argue that Nixon applies to Mrs. Clinton in he r personal capacity. Alternatively, the IC argues that even if Nixon does not apply to Mrs. Cli nton, 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

Alth ough it is unclear, the IC may argue not only that Nixo n
overcomes the White House privilege, but also that it justifies disallowin g Mrs. Clinton’s personal attorney-client privileg e to the extent that there were communications s hared with White House counsel. If this is the IC’s contention, I am not persuaded.

Nixonspecifically recognized that t he attorney-client privilege was
an exception to the general rule that “the public . . . has a right t o 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

### -61- witness against himself.” And, generally, an attorney . .

. may not be required to disclose what has been revealed i n prof essional confidence. These and other interests ar e recognized in law by privileges against forced disclosure , established in the Const itution, by statute, or at common law.

Id. at 709-10.

Desp ite Nixon’s recognition of the transcendent value of th e attorney-client privilege, it is a reasonable ex tension of Nixon to pierce the organizational at torney-client privilege asserted by the White House. Such an extension is appropriate because the Nixon opinion instructs that gener alized governmental confidentiality privileges are on balance les s important than the government’s search for the truth when both governmenta l interests are compared with the “public interest.”

It is qu ite a different thing to retroactively deny the protectio n of the attorney-clien t privilege to an individual like Mrs. Clinton based on the “public interest.” This distinction is i mportant because the Fifth and Sixth Amendments protect Mrs. Clinton, unlike the White House, and a violation of her attorney-client privilege may also violate he r constitutional rights

. See, e.g. , O’Brien v. United States , 386 U.S. 345 (1 967) (although they were not revealed to prosecutors, governmenta l interception of conve rsations between a defendant and his lawyer required vacation of convictio n) (relying upon Black v. United States , 385 U.S. 26 (1966)). Cf. Weather ford v. Bursey , 429 U.S. 545, 557 (1977) (explaining and distinguishing O’Brienand Black and stating “[t]his is not a situatio n where the State’s purpose was to learn what it c ould 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”).
-62- In addition, and more significantly, the dispute between the Whit e House and the IC sole ly involves the “public interest,” while the dispute between the IC and Mrs. Clinton pits the “public interest” agains t “i ndividual liberties,” constitutional and otherwise. Nixon did no t attempt to balance “public” and “individual” interests, and we thus lack any meaningful guidance on the matter.

Gi ven the Supreme Court’s historic respect for the attorney-clien t priv ilege and the Nixon opinion’s recognition that the attorney-clien t

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 I C alternatively argues that even if the communications evidenced by the note s are “confidential” wi thin 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.

### -63- The rule protects otherwise “confidential” communications made by the “[client] or his lawyer to a lawyer representing another in a matter o f
common interest.” Rule 503(b)(3). The “common interest” provision of Rul e 503 “is in accord with previous federal practice in recognizing a privileg e both for inter-attorney communications and joint conferences where th e client communicates t o 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) (recognizi ng and sustaining “joint defense” privilege as to an internal memorandum written by corporate general counsel that was shared with co defendants 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 litiga tion is current or imminent but, consistently with the rest of the Standard, when ever the communication was made in order to facilitate the rendition of leg al services to each of the clients involved in the conference.” 2 Jack B. Weinstein et al. , Weinstein’s Evidence ¶ 503[06], at 503-99 (footn ote omitted). Drafters of the “common interest” provision of the rule “intended the privilege to be broadl y construed in multi-party situations.” Id. at 503-100 (footnot e omitted). The evid ence and the findings of the district court establish tha t there were two “clien ts,” the White House, represented by Mrs. Clinton in her role as First Lad y, and Mrs. Clinton personally; each “client” was in tur n represented by separate lawyers regarding matters of “commo n interest.” Consider again the apparent joint decision of the White House and Mrs. Clinton to turn

### -64-

over to the IC the billing records found at the White House. As a categor ical matter, the “common interest” provision of Rule 503(b)(3 ) pl ainly applies to Mrs. Clinton and the White House because bot h legitimatelyneeded the advice of separate lawyers in order to carefully and candidly respond to the IC, among others.
The IC argues that the White House d oes 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. Cl inton 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-clien t 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 at torney-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 N ixon to the White House’s attorney-client claim does not justif y denyi ng Mrs. Clinton the protection of her personal attorney-clien t privilege safeguarded by the “common interest” provisions of the rule. The IC ha s 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

### -65-

time t hat the other party’s attorney-client privilege must, on balance , give way. We have pointedly recognized that it is “ fundamental that the ‘joi nt defense privilege cannot be waived without the consent of al l parties to the defense.’” John Morrell & Co. , 913 F.2d at 556 (citation omitte d) (emphasis added). Mrs. Clinton, not this court retroactivel y apply ing a first time ruling regarding the White House, must waive th e 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 “commun ication is ‘confidential’ if not inten ded to be disclosed to third persons . . . .” The committee note s state tha t “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 conversat ions 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. Wei nstein et al., Weinstein’s Evidenc e ¶ 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 , 47 5 U.S. 1119 (1986) (where mayor later testified to conversations with city attorney in a suit brought against mayor and city, the conversation was no t intended to be confidential and the privilege was waived)).

### -66- IV. Conclusion

As betwee n the IC and the White House, we must faithfully apply the Nixon decision because there is insufficient reason to distinguish tha t
case from th is one. As between the IC and Mrs. Clinton, we shoul d 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.