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In re Lindsey

    Brief Fact Summary. Independent counsel Kenneth Starr (Independent Counsel) filed a motion to compel President Bill Clinton’s (President) government attorney, Bruce R. Lindsey (Lindsey), to give testimony to a federal grand jury concerning possible crimes committed by governmental officials, including the President, after Lindsey refused to answer the questions, asserting the government attorney-client privilege. A district court granted Starr’s motion, and the President in his personal capacity and the Office of the President appealed. After the Independent Counsel petitioned the Supreme Court to review the district court’s decision, the Supreme Court denied certiorari, and the case was heard here in the Court of Appeals.

    Synopsis of Rule of Law. When a government attorney is called by a federal grand jury to answer questions about possible crimes committed by government officials, the government attorney is required to testify, but when the government attorney is an intermediary between the President and his personal attorney, the intermediary doctrine may be asserted to allow the attorney to refuse to answer such questions. Also, under the common interest doctrine, the President’s personal attorney cannot use the common interest doctrine to avoid answering questions from the federal grand jury.

    Facts. The Division for the Purpose of Appointing Independent Counsels instructed Independent Counsel, who had previously been investigation a series of financial transactions involving then-President Clinton, to investigate “‘whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law’ in connection with the civil lawsuit against the President of the United States filed by Paula Jones.”
    The grand jury issued a subpoena to Lindsey, who at the time was both Deputy White House Counsel and Assistant to the President, seeking disclosure of communications made between the President and Lindsey. Lindsey appeared before the grand jury, but did not answer the questions, citing the government attorney-client privilege, executive privilege, and the President’s personal attorney-client privilege.
    Independent Counsel then moved to compel the testimony of Lindsey, and the district court granted the motion.
    The Office of the President and the President in his personal capacity appealed the grant of the motion to compel and, after the Supreme Court denied certiorari to decide the issues, the Court of Appeals heard and decided the issues.

    Issues.
    When a government attorney is called by a federal grand jury to answer questions relating to possible crimes committed by government officials, may the attorney refuse to answer such questions on the basis of governmental attorney-client privilege?

    Under the intermediary doctrine, when the President of the United State’s personal attorney is called by a federal grand jury to answer questions relating to possible crimes committed by the President of the United States, may the attorney refuse to answer such questions on the basis of the President’s personal attorney-client privilege?

    Under the common interest doctrine, when the President of the United State’s personal attorney is called by a federal grand jury to answer questions relating to possible crimes committed by the President of the United States, may the attorney refuse to answer such questions on the basis of the President’s personal attorney-client privilege?

    Held.
    No; a government attorney may not assert the attorney-client privilege to avoid responding to grand jury questioning when that questioning concerns possible criminal offenses within the government.

    Yes; the President of the United States has an, “undisputed right to have an effective relationship with personal counsel, consonant with carrying out his official duties,” and therefore the intermediary doctrine may be asserted by the President’s personal attorney to avoid answering grand jury questions, but only when the attorney is acting as a mere intermediary.

    No; the President’s personal attorney cannot use the common interest doctrine to avoid answering questions from the federal grand jury, as the President’s personal attorney here is also a government official, who has a responsibility to not withhold evidence relating to criminal offenses from the grand jury.

    Dissent. Judge Tatel dissented from the court’s holding that a government attorney may not assert the attorney-client privilege to avoid responding to grand jury questioning when that questioning concerns possible criminal offenses within the government, and dissented in part and concurred in part from the court’s holding that the intermediary doctrine allows the President’s personal attorney to avoid answering grand jury questions and that the President’s personal attorney cannot use the common interest doctrine to avoid answering questions from the federal grand jury. Specifically, the dissent argued that the court’s holding will have a chilling effect on communications between the President and his counsel. The dissent stated, “Presidents of the United States, will avoid confiding in their lawyers because they can never know whether the information they share, no matter how innocent, might some day become ‘pertinent to possible criminal violations’” and therefore beyond the privi
    lege. In sum, the dissent argued that, “the very possibility that the confidence will be breached will chill communications . . . [and] [a]s a result, Presidents may well shift their trust on all but the most routine legal matters from White House counsel, who undertake to serve the Presidency, to private counsel who represent its occupant.” Finally, as to the court’s holding that the intermediary doctrine, but not the common interest doctrine, protects the President’s counsel from grand jury questioning, the dissent stated, “[s]ince I believe that the Presidency’s confidential attorney-client privilege covers communications with White House counsel, I would hold that the common interest doctrine protects communications between White House counsel and a President’s private counsel where the attorneys share an overlapping common interest.”

    Discussion.
    As to the court’s holding that a government attorney may not assert the attorney-client privilege to avoid responding to grand jury questioning when that questioning concerns possible criminal offenses within the government, the court reasoned that, “[t]he constitutional responsibility of the President . . . is to ‘take Care that the Laws be faithfully executed.’ Investigation and prosecution of federal crimes is one of the most important and essential functions within that constitutional responsibility.” Therefore, the court concluded, “a government attorney, even one holding the title Deputy White House Counsel, may not assert an attorney-client privilege before a federal grand jury if communications with the client contain information pertinent to possible criminal violations.”

    As to the court’s holding that the intermediary doctrine may be asserted by the President’s personal attorney to avoid answering grand jury questions when the attorney is acting as a mere intermediary, the court reasoned first stated that the communications must have been “reasonably necessary” in order to “fall within the attorney-client privilege.” The court went on to conclude that, “the designation of Lindsey as an intermediary was at least reasonably necessary and, thus, while acting in this capacity his communications came within the President’s personal attorney-client privilege.”

    As to the court’s holding that the President’s personal attorney cannot use the common interest doctrine to avoid answering questions from the federal grand jury, the court first pointed out that, “[a]s a usual rule, disclosure of attorney-client or work product confidences to third parties waives the protection of the relevant privileges; however, when the third party is a lawyer whose client shares an overlapping ‘common interest’ with the primary client, the privileges may remain intact.” (citations omitted). However, the court then recognized that, “government officials have responsibilities not to withhold evidence relating to criminal offenses from the grand jury . . . [and] Lindsey necessarily acts as a government attorney functioning in his official capacity as Deputy White House Counsel in those instances when the common interest doctrine might apply, just as in those instances when the government attorney-client privilege might apply.” Therefore, the court ultimately concl
    uded, Lindsey’s:

    obligation not to withhold relevant information acquired as a government attorney remains the same regardless of whether he acquired the information directly from the President or from the President’s personal counsel. Thus, his status before the federal grand jury does not allow him to withhold evidence obtained in his official role under either the government attorney-client privilege or the President’s personal attorney-client privilege applied through the common interest doctrine.


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