112 F.3d 910 (8th Cir. 1997)
In 1994 the Office of Independent Counsel received authority to investigate matters relating in any way to James B. McDougal's, President William Jefferson Clinton's, or Mrs. Hillary Rodham Clinton's relationships with Madison Guaranty Savings & Loan Association, Whitewater Development Corporation, or Capital Management Services, Inc., as well as any other violations of law developed during that primary investigation.1
On June 21, 1996, the OIC served a grand jury subpoena on the White House demanding production of all documents created during meetings attended by any attorney from the Office of Counsel to the President and Hillary Rodham Clinton that pertained to several Whitewater-related subjects.2 The White House identified nine sets of responsive notes but declined to produce them.3
The two sets at issue were notes taken by Associate Counsel Miriam Nemetz on July 11, 1995, during a meeting attended by Mrs. Clinton, Special Counsel Jane Sherburne, and Mrs. Clinton's personal attorney David Kendall concerning Mrs. Clinton's activities after the death of Deputy Counsel Vincent W. Foster, Jr., and notes taken by Ms. Sherburne on January 26, 1996, during meetings attended by Mrs. Clinton, Kendall, Nicole Seligman, and at times John Quinn concerning the discovery of Rose Law Firm billing records in the White House residence.4
On August 19, 1996, the OIC moved in the District Court to compel production of those two sets.5 The White House abandoned its executive-privilege claim and relied solely on attorney-client privilege and the work-product doctrine; Mrs. Clinton intervened and asserted her personal attorney-client privilege.6 The District Court denied the motion, finding that Mrs. Clinton and the White House held a genuine and reasonable belief that the conversations were privileged and that the work-product doctrine also barred disclosure.7
The OIC appealed. Mrs. Clinton formally intervened. The Eighth Circuit granted expedited review, heard argument in closed session, and initially filed its opinion under seal on April 9, 1997; after press reports appeared, the court amended and unsealed the opinion and related filings on May 2, 1997.8
Whether an entity of the federal government may assert the attorney-client privilege to withhold information from a federal grand jury?9
Under Fed.R.Evid. 501, the attorney-client privilege is governed by federal common law interpreted in light of reason and experience.10 Privileges are exceptional derogations from the public's right to every person's evidence.11 They are not lightly created or expansively construed.12 They apply only when a public good transcends the predominant principle of ascertaining truth.13 This principle is recognized in cases such as United States v. Nixon and Upjohn Co. v. United States.14 Although governmental entities may assert the privilege in civil litigation pitting the federal government against private parties, the criminal grand jury context involving potential wrongdoing by public officials presents a distinct issue requiring subordination of confidentiality interests.
No. The White House as a federal governmental entity may not assert the attorney-client privilege to withhold the notes from the federal grand jury.15 The ESTABLISHED FACTS establish that the OIC's 1994 mandate covered investigations into relationships involving Madison Guaranty, Whitewater Development, and Capital Management Services, as well as connected violations. The June 21, 1996 subpoena sought notes from meetings attended by White House counsel and Mrs. Clinton on those subjects.16 The two sets of notes at issue were prepared by Nemetz on July 11, 1995, and by Sherburne on January 26, 1996.17
Applying the rule, the governmental interest in confidentiality is outweighed by the grand jury's need for relevant evidence in a criminal investigation of individuals associated with the White House.18 This outcome is consistent with Nixon's subordination of presidential confidentiality to criminal process needs.19 It differs from the corporate context in Upjohn where liability exposure creates a stronger justification for secrecy.20 Government attorneys' duty under 28 U.S.C. § 535(b) to report crimes further tilts the balance toward disclosure rather than concealment.21
An entity of the federal government may not assert the attorney-client privilege to withhold information from a federal grand jury in these circumstances.22
Related opinions on this issue
Judge Kopf dissents on this issue.23 He contends that Proposed Fed.R.Evid. 503 accurately states the common law.24
The rule expressly extends the attorney-client privilege to public entities such as the White House.25 He argues that Nixon requires balancing the White House's confidentiality interest against the grand jury's need for evidence rather than denying the privilege outright.26 The OIC must first make a threshold showing of specific need, relevance, and admissibility before the district court.27
In camera review must follow to protect presidential confidentiality while permitting production only when justified.28
Whether the common-interest doctrine protects communications involving White House attorneys and Mrs. Clinton when her personal attorney is present?29
The common-interest doctrine extends attorney-client privilege protection to communications among clients with a common interest in a matter when they are represented by separate lawyers and agree to exchange information.30 The communications must otherwise qualify as privileged.31 The doctrine requires a shared legal, factual, or strategic interest.32 That interest must be more than a generalized desire to obey the law or avoid political harm.33
No. The common-interest doctrine does not protect the communications involving White House attorneys and Mrs. Clinton even though her personal attorney was present.34 The ESTABLISHED FACTS show that the meetings included Mrs. Clinton in both personal and representative capacities.35 Her personal counsel Kendall and Seligman attended.36 White House counsel Sherburne, Nemetz, and Quinn also attended.37
The meetings concerned Mrs. Clinton's activities after Foster's death and the discovery of billing records.38 Applying the rule, no common interest exists between Mrs. Clinton's personal interest in avoiding prosecution and any institutional interest of the White House.39 The OIC investigation targets individual actions rather than institutional liability.40 Asserted interests such as understanding facts or allocating responsibility amount only to a shared desire to obey the law.41 That desire is insufficient under the doctrine.42
The common-interest doctrine does not protect the communications from disclosure to the grand jury.43
Related opinions on this issue
Judge Kopf would hold that the common-interest provision of Rule 503(b)(3) protects Mrs. Clinton's personal privilege.44 She and the White House shared a common interest in responding to the investigation through separate counsel.45 Her personal privilege remains intact even if the White House privilege yields under Nixon.46
He emphasizes that Mrs. Clinton's constitutional rights under the Fifth and Sixth Amendments are implicated by any retroactive denial of her individual privilege.47 Nixon does not authorize balancing the public interest against individual liberties in this manner, and the common-interest rule cannot be waived without consent of all parties.48
Whether Mrs. Clinton's reasonable belief that conversations with White House attorneys were privileged prevents their disclosure to a grand jury?49
A client's reasonable belief may preserve privilege in cases of mistake of fact.50 Examples include believing a person was a lawyer or that communications would remain confidential from third parties.51 A client's beliefs about the scope of the law of privilege itself do not transform an otherwise unprivileged conversation into a privileged one.52
No. Mrs. Clinton's reasonable belief that conversations with White House attorneys were privileged does not prevent disclosure to the grand jury.53 The ESTABLISHED FACTS indicate that the District Court found Mrs. Clinton held a genuine and reasonable belief that the conversations were privileged.54 Yet the meetings involved White House counsel representing the governmental entity rather than Mrs. Clinton personally.55 Applying the rule, beliefs about the legal reach of privilege constitute mistakes of law rather than fact.56
No authority supports allowing such beliefs to create privilege where the underlying relationship does not support it.57 Exceptional doctrines such as qualified immunity do not extend to the privilege context.58
Mrs. Clinton's reasonable belief does not prevent disclosure of the conversations to the grand jury.59
Whether the work product doctrine protects notes prepared by White House attorneys from production pursuant to a federal grand jury subpoena?60
The work product doctrine protects materials prepared by an attorney in anticipation of litigation.61 The attorney must be preparing for or anticipating an adversarial proceeding involving the client.62 Materials prepared merely because another person anticipates litigation or for political rather than legal reasons do not qualify.63
No. The work product doctrine does not protect the notes prepared by White House attorneys from production.64 The ESTABLISHED FACTS establish that the notes were taken during meetings concerning Mrs. Clinton's personal activities and the discovery of billing records.65 The White House asserted protection on the ground that its lawyers were preparing for the OIC investigation or possible congressional hearings.66 Applying the rule, the White House itself faces no litigation or criminal exposure.67
The OIC is investigating individuals rather than the institution.68 Anticipated congressional proceedings involve only political harm rather than litigation.69 Therefore the anticipation-of-litigation requirement is not satisfied.70
The work product doctrine does not protect the notes from production to the grand jury.71