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IN RE GRAND JURY PROCEEDINGS

May 26, 1998

IN RE GRAND JURY PROCEEDINGS

NORMA HOLLOWAY JOHNSON, CHIEF JUDGE.


The opinion of the court was delivered by: JOHNSON

REDACTED VERSION

MEMORANDUM OPINION

 Before this Court are the Independent Counsel's motions to compel three witnesses to comply with their grand jury subpoenas. Witnesses Bruce Lindsey and Sidney Blumenthal have refused to answer certain questions propounded to them before the grand jury on the basis of executive privilege and Lindsey has refused to answer certain questions based upon the [REDACTED], governmental attorney-client privilege, and governmental work product protection. The attorney for the White House represented to the Court at a hearing on this matter that there were no questions as to which the third witness, [REDACTED], would assert the executive privilege or the attorney-client privilege. The Court will therefore deny the independent Counsel's motion to compel [REDACTED] testimony as moot.

 With respect to the remaining witnesses, the Court will first address their mutual claim of executive privilege. [REDACTED] Lastly, the Court will consider Lindsey's claim of governmental attorney-client privilege and work product protection.

 I. Analysis

 A. Executive Privilege

 The OIC has moved to compel the testimony of Lindsey and Blumenthal, two of President Clinton's senior advisers. The President has asserted that the executive privilege, also known as the presidential communications privilege, protects conversations involving himself, Lindsey and Blumenthal, and top White House aides. The presidential communications privilege is a governmental privilege intended to promote candid communications between the President and his advisors concerning the exercise of his Article II duties. United States v. Nixon, 418 U.S. 683, 705, 708, 711, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974); In re Sealed Case, 326 U.S. App. D.C. 276, 121 F.3d 729, 744 (D.C. Cir. 1997) (the "Espy case"). This Circuit has recognized a "great public interest" in preserving "the confidentiality of conversations that take place in the President's performance of his official duties" because such confidentiality is necessary in order to protect "the effectiveness of the executive decision-making process." Nixon v. Sirica, 159 U.S. App. D.C. 58, 487 F.2d 700, 717 (D.C. Cir. 1973); In re Sealed Case, 121 F.3d at 742. Courts have recognized that the President "occupies a unique position in the constitutional scheme," Nixon v. Fitzgerald, 457 U.S. 731, 749, 73 L. Ed. 2d 349, 102 S. Ct. 2690 (1982), and that "in no case of this kind would a court be required to proceed against the president as against an ordinary individual." Nixon, 418 U.S. at 708 (quoting United States v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (C.C.D.Va. 1807)).

 1. The Presumption of Privilege

 The White House argues that the communications of Lindsey and Blumenthal are presumptively privileged because President Clinton has invoked executive privilege. The OIC counters that the communications are not privileged because the executive privilege applies only to communications regarding official presidential matters and the federal grand jury investigation regarding Monica Lewinsky and the Paula Jones litigation are private matters. In light of the holdings of the United States Supreme Court and the Court of Appeals for the District of Columbia Circuit, this Court finds that it has a duty to treat the subpoenaed testimony of Lindsey and Blumenthal as presumptively privileged. See Nixon, 418 U.S. at 713; In re Sealed Case, 121 F.3d at 743.

 Prompted by the Watergate investigation, the Supreme Court held that when the President of the United States asserts a claim of executive privilege, the district court has a "duty to . . . treat the subpoenaed material as presumptively privileged." Nixon, 418 U.S. at 713 (emphasis added). The D.C. Circuit recently reiterated this holding when it considered President Clinton's assertion of the executive privilege in the context of a federal grand jury investigation of Michael Espy, former Secretary of Agriculture. In re Sealed Case, 121 F.3d at 743. The D.C. Circuit wrote: "The President can invoke the privilege when asked to produce documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential. If the President does so, the documents become presumptively privileged." Id. at 744. In the Espy case, the D.C. Circuit treated the executive communications at issue as presumptively privileged just as it had done in earlier cases involving President Nixon's assertions of executive privilege. Id. at 743; see Sirica, 487 F.2d at 717; Senate Select Comm. on Presidential Campaign Activities v. Nixon, 162 U.S. App. D.C. 183, 498 F.2d 725, 730 (1974) ("Presidential conversations are 'presumptively privileged,' even from the limited intrusion represented by in camera examination of the conversations by a Court."). The presumptive privilege for executive communications "embodies a strong presumption, and not merely a lip-service reference." Dellums v. Powell, 182 U.S. App. D.C. 244, 561 F.2d 242, 246 (D.C. Cir.), cert. denied, 434 U.S. 880, 98 S. Ct. 234, 54 L. Ed. 2d 160 (1977).

 No court has ever declined to treat executive communications as presumptively privileged on the grounds that the matters discussed involved private conduct. In fact, in the Nixon cases, the D.C. Circuit and the Supreme Court treated President Nixon's executive communications with his aides as presumptively privileged even though they involved the President's alleged criminal involvement in a break-in at the Democratic National Committee headquarters and its subsequent cover-up. See Nixon, 418 U.S. 683 at 708, 41 L. Ed. 2d 1039, 94 S. Ct. 3090; Sirica, 487 F.2d at 717; Senate Select, 498 F.2d at 730. In Senate Select, the subpoena explicitly directed President Nixon to give Congress taped conversations between himself and John Dean that "discussed alleged criminal acts occurring in connection with the Presidential election of 1972." 498 F.2d at 727. The D.C. Circuit not only presumed that the conversations were privileged, but also stated that the showing of need required to overcome the presumption "turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, but instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment." Id. at 730. In other words, the nature of the presidential conduct at issue, whether it was official or private, appeared not to affect the presumption of privilege or the need stage of the D.C. Circuit's executive privilege analysis.

 Purely private conversations that did not touch on any aspect of the President's official duties or relate in some manner to presidential decision-making would not properly fall within the executive privilege. *fn1" However, the President does need to address personal matters in the context of his official decisions. The position that nothing the President or his advisors could say to each other regarding the grand jury investigation or the Jones litigation would relate to the President's official duties is oversimplified. Indeed, the Independent Counsel has conceded that certain executive communications, such as those discussing how the President should respond to the Lewinsky matter during Tony Blair's visit, are protected by the executive privilege. 3/20/98 Tr. at 61-62.

 At this stage, the Court has no evidence that Lindsey and Blumenthal's conversations discussing the Lewinsky and Jones matters were not related in some way to official decision-making. To the contrary, the Court has [REDACTED] sworn affidavits asserting that the conversations at issue involved official matters such as possible impeachment proceedings, domestic and foreign policy matters, and assertions of official privileges. *fn2" The Office of the President submitted the affidavits "to establish as a factual matter that the communications in the White House over which executive privilege was being asserted related to official matters and official conduct" 3/20/98 Tr. at 43. The grand jury transcripts provided to the Court do not indicate that the witnesses refused to answer questions regarding conversations that did not relate to the President's official duties. The Court will not speculate that conversations among the President and his advisors fell outside of the President's Article II responsibilities.

 The Court does not have documents or tapes to review in camera that could establish whether the content of the subpoenaed communications relates only to private matters, nor does it know how Lindsey and Blumenthal might answer the grand jury's questions. The Court is aware of only the unanswered questions themselves. Furthermore, unlike the Espy case, the subpoenas here call for testimony, not documents that the Court could review in camera. The Court's ability to assess whether the subpoenaed materials relate to official decisions is thus greatly hindered. This Circuit has stated:

 
Any court completely in the dark as to what Presidential files contain is duty bound to respect "the singularly unique role under Art. II of a President's communications and activities, related to the performance of duties under that Article." For "a President's communications and activities encompass a vastly wider range of sensitive material than would be true of any 'ordinary individual,'" and "it is therefore necessary in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice." . . . . There is a presumption of privilege which can only be overcome by some demonstration of need.

 United States v. Haldeman, 181 U.S. App. D.C. 254, 559 F.2d 31, 76 (D.C. Cir. 1976) (footnotes omitted), cert. denied sub. nom Ehrlichman v. United States, 431 U.S. 933, 53 L. Ed. 2d 250, 97 S. Ct. 2641 (1977).

 Under Nixon, the Court has a duty to treat the subpoenaed testimony as presumptively privileged. 418 U.S. at 713. In light of this binding precedent, the factual similarities between the Nixon cases and the case at hand, and the evidence submitted with respect to the President's invocation of privilege, this Court finds that it must treat the communications of Lindsey and Blumenthal as presumptively privileged.

 2. The Scope of the Privilege

 Although the Court must presume that presidential communications are privileged, the scope of the privilege is limited to "communications authored or solicited and received by those members of an immediate White House adviser's staff who have broad and significant responsibility for investigating and formulating the advice to be given to the President on the particular matter to which the communications relate." In re Sealed Case, 121 F.3d at 752. In other words, the President does not have to participate personally in the communication in order for it to be privileged.

 Citing the presidential communications privilege, Lindsey refused to answer questions before the grand jury regarding a conversation he had with [REDACTED]. The White House did not mention [REDACTED] in its brief or at the hearings before this Court, much less argue that [REDACTED] is a presidential adviser. At any rate, the White House has not met its burden of showing that [REDACTED] communications with Lindsey "occurred in conjunction with the process of advising the President." Id. Accordingly, the Court finds that any conversations between Lindsey and [REDACTED] are not covered by the executive privilege.

 Both Lindsey and Blumenthal refused to answer questions before the grand jury regarding conversations they had with the First Lady, citing executive privilege. [REDACTED] states: "The First Lady functions as a senior adviser to the President, and it was in that capacity that I had discussions with her about the Independent Counsel's investigation." [REDACTED] At the hearing on this matter, in response to a question from the Court, the attorney for the White House argued that First Ladies have traditionally held a position of senior adviser to the President and cited Association of American Physicians & Surgeons, Inc. v. Clinton, 302 U.S. App. D.C. 208, 997 F.2d 898 (D.C. Cir. 1993). The OIC has not contested that Mrs. Clinton would be covered by the executive privilege.

 In Association of American Physicians & Surgeons, the D.C. Circuit faced the question of whether Mrs. Clinton was an "officer or employee of the government" for purposes of the Federal Advisory Committee Act ("FACA"). 302 U.S. App. D.C. 208, 997 F.2d 898 at 902. Mrs. Clinton chaired the President's Task Force on National Health Care Reform ("Task Force"), which was to advise the President and make recommendations to him. The issue before the D.C. Circuit was whether the Task Force qualified for an exemption from FACA as an advisory group whose members were all officers and employees of the government. Rather than decide the constitutional question of whether the application of FACA would unconstitutionally interfere with the President's duty to "take Care that the Laws be faithfully executed," U.S. Const. art II, § 3, the court decided that Mrs. Clinton was an officer or employee of the government under FACA. 997 F.2d at 911. In the D.C. Circuit's discussion of the constitutional question, the court stated: "This Article II right to confidential communications attaches not only to direct communications with the President, but also to discussions between his senior advisors. . . . If the President seeks advice from those closest to him, whether in or out of government, the President's spouse, typically, would be regarded as among those closest advisers." Id. at 909-10.

 Mrs. Clinton is widely seen as an advisor to the President and "Congress itself has recognized that the President's spouse acts as the functional equivalent of an assistant to the President." Id. at 904 (citing 3 U.S.C. § 105(e)). The Court finds that conversations between the First Lady and Lindsey or Blumenthal fall under the executive privilege.

 3. OIC's Showing of Need

 The presumptive executive privilege is not absolute. Sirica, 487 F.2d at 716. The Court will not accept the President's "mere assertion of privilege as sufficient to overcome the need of the party subpoenaing the [testimony]." Id. at 713. The presumption of privilege may be rebutted by a sufficient showing of need by the Independent Counsel. *fn3" In re Sealed Case, 326 U.S. App. D.C. 276, 121 F.3d 729, 754 (D.C. Cir. 1997).

 In deciding what showing of need is sufficient to overcome an assertion of the executive privilege, the D.C. Circuit looked to the need analyses established in the cases involving President Nixon and the Watergate investigation. 121 F.3d at 753. *fn4" The court found that these cases "balanced the public interests served by protecting the President's confidentiality in a particular context with those furthered by requiring disclosure." Id. Working from the Supreme Court's rather vague requirement of a "demonstrated, specific need for evidence," Nixon, 418 U.S. at 713, the D.C. Circuit concluded that in order to overcome an assertion of executive privilege, the OIC must show "first, that each discrete group of the subpoenaed materials likely contains important evidence; and second that this evidence is not available with due diligence elsewhere." In re Sealed Case, 121 F.3d at 754. These elements must be shown "with specificity." Id. at 756. The information sought need not be "critical to an accurate judicial determination." Id. at 754.

 The first requirement means that the evidence being sought must be "directly relevant to the issues that are expected to be central to the trial." Id. The D.C. Circuit noted that this requirement will not typically have much impact because Federal Rule of Criminal Procedure 17(c) already limits a subpoena to relevant information. With respect to the second requirement, the party seeking to overcome the privilege should first attempt to determine whether sufficient evidence could be obtained elsewhere. 121 F.3d at 755. The issuer of the subpoena "should be prepared to detail these efforts and explain why evidence covered by the presidential privilege is still needed." Id. The Court of Appeals has noted:

 
there will be instances where such privileged evidence will be particularly useful, as when, unlike the situation here, an immediate White House advisor is being investigated for criminal behavior. In such situations, the subpoena proponent will be able easily to explain why there is ...

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