White House Counsel and the Attorney Client Privilege
 

Ronald D. Rotunda*

Introduction

On June 23rd , when the U.S. Supreme Court denied certiorari in In re Grand Jury Subpoena Duces Tecum,(1) news reports indicated surprise. White House Counsel Charles Ruff reacted to the Supreme Court decision by announcing that he continues "to believe that government lawyers must be allowed to have confidential discussions with their clients if they are able to provide candid legal advice." Ruff is right about this principle, but he is wrong in thinking that his client is Mr. Clinton. His client is an entity, the Office of the President, not this particular officeholder. Mr. Clinton has his personal lawyers, and Ruff is not one of them.

There is a simple reason why the Supreme Court did not take the Eight Circuit case: it made no new law and was not worthy of Supreme Court attention. That's right. I have talked to both career Justice Department lawyers and former DOJ lawyers, and all agreed that Judge Pasco Bowman's Eight Circuit's ruling was simply not surprising. What was startling, in their view, was the White House position. It is surprising that the so many people were persuaded to believe the Judge Bowman made new law.

The issue, according to one prominent legal commentator, is "whether a governmental attorney-client privilege exists at all, even to ward off subpoenas by private litigants."(2) Does Bowman's decision mean that government lawyers have no attorney client privilege to ward off subpoenas by private litigants? Hardly. When Judge Bowman wrote his opinion, he made clear that the first issue he would address - the issue that, surprisingly, the District Court found "unnecessary to decide" - is: "whether an entity of the federal government may use the attorney-client privilege to avoid complying with a subpoena by a federal grand jury."(3) All Judge Bowman really ruled was that the Government cannot plead attorney client privilege against itself. When this case was presented to the Supreme Court, the basic question was, first, whether a federal statue (discussed below) requires disclosure, and, second, if it does not, whether "a federal government agency may rely on a governmental attorney-client or work product privilege to withhold relevant information subpoenaed by a federal grand jury."(4)

Consider this situation -The Department of Justice is investigating criminal allegations involving the FBI. The General Counsel to the FBI, or an Assistant U.S. Attorney, takes notes of an interview with the FBI Director, who discloses relevant information. Can the Assistant U.S. Attorney General or the FBI General Counsel plead attorney-client privilege against the Attorney General who wants to see these notes? The answer has always been no. The Federal Government cannot use Government lawyers to shield the production of information relevant to a Federal criminal investigation, because these lawyers represent the Government as an entity, not the individuals who happen to be government officials.

First, a little background. A federal statute provides that - when the Attorney General seeks the appointment of an Independent Counsel - the Independent Counsel acts in the name of the United States.(5) Recall that the Watergate tapes case, another dispute involving evidence sought by a different Independent Counsel, was called United States v. Nixon.(6) President Clinton, by the way, objected to this untidy fact. That's why his certiorari application incorrectly styled the title of this case as, Office of the President v. Office of Independent Counsel.

The United States, acting through the Office of Independent Counsel ("OIC"), subpoenaed two sets of notes taken by U.S. Government attorneys. Associate White House Counsel took the first set of notes in July, 1995 at a meeting with Mrs. Clinton, her personal attorney, and White House counsel. The conversations involved Mrs. Clinton's activities following the death of Vincent Foster, then Deputy Counsel to the President. Associate White House Counsel took the second set of notes in January, 1996, during breaks in, and immediately following, Mrs. Clinton's testimony before a federal grand jury concerning the appearance of long-missing, subpoenaed billing records from the Rose Law Firm.

When the OIC subpoenaed these notes, President Clinton, in the tradition of President Nixon, at first pled executive privilege. Later he abandoned this claim and pled attorney-client privilege.(7) However, neither Mrs. Clinton nor the Government lawyers claimed that the White House lawyers represented Mrs. Clinton personally.(8) The Government lawyers were witnesses to the conversations she had with her personal attorneys in the presence of Government lawyers.

Stuart Taylor in The Legal Times claimed that the Independent Counsel's refusal to accept the claim of attorney-client privilege "smacks of changing the rules in the middle of the game."(9) But neither Mrs. Clinton nor the White House lawyers could seriously make this argument. In March, 1995 - before either sets of notes were created - the OIC informed the parties that it would not accept the argument that Federal Government lawyers could hide behind the attorney-client privilege in order to withhold information from the Federal Government (i.e., the OIC and the Grand Jury, both acting in the name of the United States).(10)

It was the White House claim of attorney-client privilege that was the real surprise, that "chang[ed] the rules in the middle of the game." The Clinton White House had earlier acknowledged that if any White House personnel have any information about a possible violation of law, they must communicate this information to the Attorney General, the Deputy Attorney General, or the Associate Attorney General.(11) The OIC now stands in the shoes of the Attorney General, so the information should have been volunteered to the OIC. In fact, the White House made no claim of attorney-client privilege when it earlier produced subpoenaed notes of other White House lawyers meeting with other White House officials.(12) Nor were any such claims made when other White House lawyers testified about their work before the Whitewater Grand Jury.(13) But when it came to the notes involving Mrs. Clinton, the White House stood firm.

The Federal Statute Requiring Disclosure

Section 535 of title 28 is a very specific federal statute that governs the situation where there is "any information" received in any "department or agency of the executive branch of the Government relating to violations of title 18" (the title that codifies federal crimes) that involve Government officers and employees.(14) The White House conceded that the Office of Counsel to the President (or White House Counsel, for short) is a department or agency of the executive branch,(15) and lawyers in that department had received information relevant to the Grand Jury investigation.

This statute requires this information to be "expeditiously reported to the Attorney General by the head of the department or agency." The OIC stands in the shoes of the Attorney General,(16) so Ruff, as White House Counsel and head of this particular agency, should not have fought the subpoena; instead, he should have volunteered this information to the OIC. White House Associate Counsel learned relevant information in the court of their official duties, and the statute provides that there is no attorney-client privilege in this situation. Instead of following the statute, the White House Counsel fought the subpoena all the way to the Supreme Court.

The position that Mr. Ruff now takes is not the view of previous White House Counsel. Lloyd Cutler, former White House Counsel during both the Carter and Clinton Presidency, understood that his "duty, if you're a Government official as we lawyers are, a statutory duty [is] to report to the Attorney General any evidence that you run into of a possible violation of a criminal statute."(17) Similarly, the Office of Legal Counsel of the Department of Justice has opined that "evidence of criminal conduct 'uncovered' during the course of an investigation will be referred directly to the Department of Justice, as is required by 28 U.S.C. § 535."(18) These modern day views simply reflect the legislative history of section 594, which explained that the purpose of this law is to require departments and agencies of the executive branch to report to the Attorney General any information coming to their attention concerning any relevant irregularities.(19)

Nixon could not assert the attorney-client privilege to keep John Dean from testifying. During the Iran-Contra investigation President Reagan did not assert the privilege when White House lawyers and other government lawyers testified about their conversations with federal officials including the President.(20) It makes little sense to say that President Reagan has no privilege when talking to Government lawyers, but Nancy Reagan has the privilege. But that, in essence, is the position that Hillary Rodham Clinton and President Clinton now take.

The Attorney-Client Privilege of Corporations

There are other ways to analyze this case, all leading to the same result. The White House claims that the Eighth Circuit decision means that the President of the United States does not have the same right to the attorney-client privilege as does the Chief Executive Officer of any corporation. News reports repeated that statement as a fact, not subject to dispute.(21) That's simply incorrect. (Let us leave to one side the question of whether a federal agency is really analogous to a corporation in this context. Corporations can be indicted, but the Executive Office of the President -unlike individuals working in that Office - cannot be indicted.(22)

If we treat the Office of Counsel to the President like a private corporation, the privilege would belong to the entity, not to the Chief Executive Officer. Mrs. Clinton relied, in part, on the confidentiality obligations of attorneys licensed in Washington, D.C.,(23) but the ethics rules, like the standard rules of attorney-client privilege conclude that lawyers for a corporation or other organization represent the incorporeal entity, not any individual in the corporation.(24)

For example, if control of the corporation changes, the corporation can require that the prior attorneys disclose to it otherwise privileged information.(25) The corporation, not the CEO, controls the privilege.(26) The privilege may exist as to third parties,(27) but if the CEO of the corporation (or the spouse of the CEO) gives incriminating or other relevant information to the General Counsel of the corporation, that General Counsel cannot keep that information from the entity.(28) If the Board of Directors orders that certain information must be disclosed to the authorities, the ethics rules require that it be disclosed. Here, of course, a federal statute also requires disclosure.

The ethics rules on which Mrs. Clinton and the White House rely say quite clearly that the "constituents of an organizational client," such as its employees, directors, officers, are not the clients of the lawyer.(29) Just as the Counsel to the Corporation represents the Corporation and not the CEO, the White House Counsel represents the "Office of the President," and not the individual occupier of that office. In some circumstances, a lawyer for a corporation may also represent one of its constituent elements, if the organization gives knowing consent.(30) In this case, Ms. Clinton does not claim that the White House Counsel represented her and the White House.(31) Moreover, if she had sought consent, it could not have been given, because federal law does not authorize it.(32)

In addition, Ms. Clinton is simply not a constituent or official of the White House. The Eighth Circuit, out of deference for Mrs. Clinton, assumed, for the sake of argument, that Mrs. Clinton "is a representative of the White House" and was at the meetings in some sort of official capacity. This is an heroic assumption. If Mrs. Clinton is a federal official she is a very unusual one. She is not elected, not appointed. She would be the only official in the Executive Branch who cannot be impeached, although the Constitution provides that "all civil Officers of the United States" are subject to impeachment. It is true that the First Lady has a budget, but former President Bush (like all former Presidents) has a federal budget too, and the Clinton Administration does not claim that he is an officer of the Executive Branch.

If Mrs. Clinton is not a federal official, then she is merely a private citizen, a powerful member of the Kitchen Cabinet. Nixon had his Bebe Rebozo; LBJ had his Abe Fortas (who was an influential adviser before he ever was appointed to the Supreme Court). Would Nixon have been able to claim attorney-client privilege to conversations that Bebe Rebozo had with John Dean?

The Common Interest and Work Product Doctrines

The White House also argued that the information that Mrs. Clinton disclosed in the presence of the Government lawyers was privileged based on the "common interest" doctrine. This rule allows two or more clients with a common interest and different lawyers to share information and keep it privileged as against third persons. The Eighth Circuit made short work of this theory: "Mrs. Clinton's interest in the OIC's investigation is, naturally, avoiding prosecution," but the White House has no such interest. It cannot be prosecuted. Its official interest is in ferreting out wrongdoing. The White House cannot plead attorney-client privilege against the rest of the Government. Even when it pleads attorney-client privilege against third parties, it is supposed to do that for the benefit of the Republic, not for the benefit of any particular officeholder.(33) The sovereign is supposed to win whenever justice is done.(34)

The attorney work product privilege has always been weaker than the attorney-client evidentiary privilege, so we should not be surprised that the Eighth Circuit rejected that as well. The Federal Rules of Civil Procedure offer some protection for a lawyer's work product "prepared in anticipation of litigation or for trial."(35) However, the notes prepared by White House counsel were not prepared "in anticipation of litigation or trial," because there was no anticipation of any adversarial proceeding involving "The White House." It is even more difficult to imagine a lawsuit where that entity would be aligned with Mrs. Clinton. There can be no lawsuit captioned, The United States v. The White House & Hillary Rodham Clinton. As the Eighth Circuit noted:

"[T]he OIC is not investigating the White House, nor could it do so. White House officials may be under investigation on account of their individual acts, but we know of no authority allowing a client such as the White House to claim work product immunity for materials prepared while some other person, such as Mrs. Clinton, was anticipating litigation."(36)

Moreover, even if matters are within the work product privilege, the court can order production if the party seeking discovery (the OIC) "has substantial need for the materials" and is "unable without undue hardship to obtain the substantial equivalent of the materials by other means."(37) Here, the only way to obtain "the substantial equivalent" of the notes of the two meetings is to obtain the notes of the two meetings.

And then, there is still the federal statute mandating disclosure.(38) Just as the Assistant U.S. Attorney cannot claim attorney-client privilege against the Attorney General (or the OIC, which stands in her shoes), the AUSA cannot claim work product privilege.

Conclusion

Judge Bowman's Eighth Circuit opinion does nothing to undercut the rights of federal agencies or entities to engage in confidential discussion with government lawyers. As the opinion makes clear: "Because agencies and entities of the government are not themselves subject to criminal liability, a government attorney is free to discuss anything with a government official - except for potential criminal wrongdoing by that official - without fearing later revelation of the conversation. An official who fears he or she may have violated the criminal law and wishes to speak with an attorney in confidence should speak with a private attorney, not a government attorney."(39)

*Ronald Rotunda is the Albert E. Jenner, Jr. Professor of Law at the University of Illinois College of Law.

  1. 112 F.3d 910 (8th Cir. 1997)[decided, Apr. 4, 1997, amended and unsealed, May 2, 1997)], cert. denied, sub. nom. Office of the President v. Office of Independent Counsel, 65 U.S.L.W. 3767, 1997 WestLaw 274825 (June 23, 1997).
  2. Stuart Taylor, Jr., The President and the Privilege, 19 Legal Times of Washington, D.C, at p. 27, col. 1 (May 12, 1997).
  3. 112 F.3d at 915.
  4. Brief of the Federal Respondent in Opposition to Petition for a Writ of Certiorari, Office of the President v. Office of Independent Counsel, No. 96-1783, at (i) [emphasis added].
  5. 28 U.S.C. § 594(a) provides that the Office of Independent Counsel "exercise[s] all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General," and "handl[es] all functions all aspects of any case, in the name of the United States. "When issuing "subpoenas, an independent counsel stands in the place of the Attorney General." S. Rep. No. 100-123, at 22 (1987). See also, 28 U.S.C. § 594(a).
  6. 418 U.S. 683 (1974).
  7. Clinton withdrew the claim of Executive Privilege on Sept. 30, 1996. The trial court issued is decision (finding attorney client privilege) on Nov. 26, 1996. See, Brief of the Federal Respondent in Opposition to Petition for a Writ of Certiorari, Office of the President v. Office of Independent Counsel, No. 96-1783, at 5 & n. 4.
  8. 112 F.2d at 923: "Mrs. Clinton does not claim that she believed that the White House lawyers represented her personally . . .." In addition, the White House attorneys filed affidavits that they did not represent Mrs. Clinton in her personal capacity.
  9. Stuart Taylor, Jr., The President and the Privilege, 19 Legal Times of Washington, D.C., at p. 27, col. 3 (May 12, 1997).
  10. See, Brief of the Federal Respondent in Opposition to Petition for a Writ of Certiorari, Office of the President v. Office of Independent Counsel, No. 96-1783, at 3.
  11. White House Travel Office Management Review, at p. 23 (July 2, 1993) (this was the White House report on the scandal involving the White House Travel Office).
  12. See, Brief of the Federal Respondent in Opposition to Petition for a Writ of Certiorari, Office of the President v. Office of Independent Counsel, No. 96-1783, at 4-5.
  13. Id. It had already been publicly disclosed that White House attorneys had testified before the grand jury. Id. at 4. There are important First Amendment limitations on the power of the state to preclude a grand jury witness from disclosing the fact that he or she has testified. 4 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance & Procedure § 20.25, at 151 (West Pub. Co., 2d ed. 1992) (and 1997 Pocket Part). Once a newspaper lawfully secures information "simply by asking various witnesses," the government cannot prevent the newspapers from publishing this information. E.g., Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979).
  14. 28 U.S.C. § 535(b) provides: "(b) Any information, allegation, or complaint received in a department or agency of the executive branch of the Government relating to violations of title 18 involving Government officers and employees shall be expeditiously reported to the Attorney General by the head of the department or agency, unless - "(1) the responsibility to perform an investigation with respect thereto is specifically assigned otherwise by another provision of law; or "(2) as to any department or agency of the Government, the Attorney General directs otherwise with respect to a specified class of information, allegation, or complaint." (emphasis added). Because the Independent Counsel stands in the shoes of the Attorney General, the information should be reported to him, as subsections (1) and (2) indicate.
  15. The White House repeatedly made these concessions in various briefs that it filed. Brief of the Federal Respondent in Opposition to Petition for a Writ of Certiorari, Office of the President v. Office of Independent Counsel, No. 96-1783, at 14 n. 16.
  16. 28 U.S.C. § 594(a); S. Rep. No. 100-123, at 22 (1987)
  17. Lloyd Cutler, The Role of the Counsel to the President of the United States, 35 The Record of the Association of the Bar of the City of New York 470, 472 (1980)(emphasis added).
  18. 186 Opinions of Office of Legal Counsel 626, 627 (1982) (commenting on proposal involving inspector general investigation).
  19. 19H.R. Rep. No. 83-2622 (1954).
  20. 1 Final Report of the Independent Counsel for Iran/Contra Matters, 44, 346-48, 366-68, 470 n.137, 474-79, 517-20, 536 & nn. 116-17 (Aug. 4, 1993).
  21. Linda Greenhouse, White House Seeks to Reverse Ruling on Lawyers' Notes, New York Times, May 13, 1997, at 1, col. 6: "That opinion upheld the validity of a grand jury subpoena seeking material that in the private sector would clearly be protected against forced disclosure."
  22. As Judge Bowman correctly points out, any "official misconduct" is really the "misconduct of officials." 112 F.3d 910, 923 (8th Cir. 1997), cert. denied, sub. nom. Office of the President v. Office of Independent Counsel, 65 U.S.L.W. 3767, 1997 WestLaw 274825 (June 23, 1997).
  23. 112 F.3d at 923 n. 14.
  24. Id. Ms. Clinton focused on D.C. Rules of Professional Conduct, Rule 1.6. But first she should have determined whom the lawyers for the entity represent. In other words, she should have turned to Rule 1.13(a). See, Thomas D. Morgan & Ronald D. Rotunda, Problems and Materials on Professional Responsibility 239-50 (Foundation Press, 5th Ed., 1995).
  25. E.g., Tekni-Plex Inc. v. Meyner & Landis, 651 N.Y.S.2d 954, 89 N.Y.2d 123, 674 N.E.2d 663 (1996) (successor, which continued business operations of premerger entity, controlled attorney-client privilege with regard to confidential communications arising out of those operations, including any premerger communications between predecessor and law firm relating to company's environmental compliance). See also, American Law Institute, Restatement (Third) of the Law Governing Lawyers, Reporter's Note, at 407 (Proposed Official Draft No. 1, March 29, 1996).
  26. E.g., Ronald D. Rotunda, Professional Responsibility 61-68 (West Pub. Co., 4th Ed. 1995).
  27. ABA Model Rules of Professional Conduct, Rule 1.13, Comment 2, reprinted in, Thomas D. Morgan & Ronald D. Rotunda, Selected Standards on Professional Responsibility 42 (Foundation Press, 1997).
  28. Indeed, in some circumstances the lawyer has the ethical duty to volunteer information, to climb up the ladder of corporate control, to make sure that the entity really knows what is going on. E.g., ABA Model Rules of Professional Conduct, Rule 1.13(b),(c), reprinted in, Thomas D. Morgan & Ronald D. Rotunda, Selected Standards on Professional Responsibility 40-41 (Foundation Press, 1997).
  29. D.C. Rules of Professional Conduct, Rule 1.13, Comment 3. Accord, ABA Model Rules of Professional Conduct, Rule 1.13, Comment 2, reprinted in, Thomas D. Morgan & Ronald D. Rotunda, Selected Standards on Professional Responsibility 42 (Foundation Press, 1997).
  30. D.C. Rules of Professional Conduct, Rule 1.13(c); ABA Model Rules of Professional Conduct, Rule 1.13(e). Accord, ABA Model Rules of Professional Conduct, Rule 1.13(e), reprinted in, Thomas D. Morgan & Ronald D. Rotunda, Selected Standards on Professional Responsibility 41 (Foundation Press, 1997).
  31. 112 F.2d at 923: "Mrs. Clinton does not claim that she believed that the White House lawyers represented her personally . . .." In addition, the White House attorneys filed affidavits that they did not represent Mrs. Clinton in her personal capacity.
  32. 28 Code of Federal Regulations § 50.15(a)(4). See also, American Law Institute, Restatement (Third) of the Law Governing Lawyers, § 124, Comment d ("Individual government officers and agent") (Proposed Official Draft No. 1, March 29, 1996).
  33. Cf. Nixon v. Administrator of General Services, 433 U.S. 425, 449 (1977).
  34. See, Freeport-McMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 47 (D.C.Cir. 1992), Judge Mikva, argued that Government lawyers representing government agencies should be held to higher ethical standards than lawyers for private litigants.) Judge Mikva later became White House Counsel.
  35. Fed. R. Civ. Pro., Rule 26(b)(3).
  36. 112 F.3d at 910, 924.
  37. Fed. R. Civ. Pro., Rule 26(b)(3).
  38. 28 U.S.C. § 535(b).
  39. 112 F.3d at 921.
   
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