In Re Grand Jury Subpoena Duces Tecum
112 F.3d 910, 1997 WL 217316 (1997)
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Rule of Law:
A federal government entity may not invoke the attorney-client privilege or the attorney work product doctrine to withhold information and documents from a federal grand jury investigation.
Facts:
- Independent Counsel Kenneth W. Starr was appointed to investigate matters related to President Bill Clinton's and Hillary Rodham Clinton's involvement with the Whitewater Development Corporation.
- On July 11, 1995, Associate Counsel to the President Miriam Nemetz took notes during a meeting with Hillary Rodham Clinton, Special Counsel to the President Jane Sherburne, and Mrs. Clinton's personal attorney, David Kendall.
- The subject of the July 11, 1995 meeting was Mrs. Clinton's activities following the death of Deputy Counsel to the President Vincent W. Foster, Jr.
- On January 26, 1996, Ms. Sherburne took notes during meetings with Mrs. Clinton and her personal legal team, which took place during breaks in Mrs. Clinton's grand jury testimony.
- The subject of the January 26, 1996 meetings was the recent discovery of billing records from the Rose Law Firm in the White House residence.
Procedural Posture:
- The Office of Independent Counsel (OIC) issued a federal grand jury subpoena to the White House demanding the production of documents.
- The White House identified responsive documents but refused to produce them, asserting attorney-client privilege and the attorney work product doctrine.
- The OIC filed a motion to compel production in the United States District Court.
- Hillary Rodham Clinton intervened to assert her personal attorney-client privilege.
- The District Court, as the court of first instance, denied the OIC's motion to compel, holding that the asserted privileges protected the documents from disclosure.
- The OIC, as appellant, appealed the District Court's order to the United States Court of Appeals for the Eighth Circuit, with the White House as appellee.
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Issue:
Does the governmental attorney-client privilege or the attorney work product doctrine shield notes created by White House attorneys from a federal grand jury subpoena?
Opinions:
Majority - Bowman, J.
No, neither the governmental attorney-client privilege nor the attorney work product doctrine shields these notes from a federal grand jury subpoena. Unlike a private entity, a government entity cannot be subject to criminal liability, and its employees have a statutory duty to report criminal wrongdoing. The strong public interest in honest government and exposing official wrongdoing outweighs the government's need for confidentiality in the context of a federal criminal investigation. The common-interest doctrine does not apply because the White House as an institution does not share a legally cognizable common interest with Mrs. Clinton in her personal capacity, whose personal liberty is potentially at stake. Furthermore, the work product doctrine is inapplicable because the White House itself was not anticipating litigation; the investigation was into the conduct of individuals, not the institution.
Dissenting - Kopf, J.
Yes, the governmental attorney-client privilege does shield the notes, but this privilege is qualified and can be overcome by a specific showing of need. The federal common law, as reflected in Proposed Federal Rule of Evidence 503, recognizes that governmental entities are clients for the purpose of the privilege. Rather than eliminating the privilege entirely in this context, the court should have applied the balancing test from United States v. Nixon, which would require the prosecutor to make a threshold showing of specific need, relevance, and admissibility. Mrs. Clinton's personal privilege, protected by the common-interest doctrine, should also serve as a complete defense because her individual constitutional rights are implicated, a factor not considered in Nixon. The majority's decision retroactively denies a privilege that the parties reasonably believed to exist.
Analysis:
This decision establishes a significant limitation on the governmental attorney-client privilege, creating a bright-line rule that it cannot be asserted in response to a federal grand jury subpoena. The ruling clarifies that the public's interest in the grand jury's truth-seeking function supersedes a government entity's interest in confidential legal communications regarding potential criminal matters. The case serves as a strong precedent that government officials seeking legal advice about actions that could expose them to personal criminal liability must consult with private counsel, as communications with government lawyers are not protected from a federal criminal investigation.
