In Re: Bruce Lindsey , 148 F.3d 1100 ( 1998 )


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  •                         United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued June 29, 1998        Decided July 27, 1998
    No. 98-3060
    In re:  Bruce R. Lindsey (Grand Jury Testimony)
    Consolidated with
    Nos. 98-3062 and 98-3072
    Appeals from the United States District Court
    for the District of Columbia
    (No. 98ms00095)
    W. Neil Eggleston argued the cause for appellant the Office
    of the President, with whom Timothy K. Armstrong, Julie K.
    Brof and Charles F.C. Ruff, Counsel to the President, were
    on the briefs.
    David E. Kendall argued the cause for appellant William J.
    Clinton, with whom Nicole K. Seligman, Max Stier, Robert S.
    Bennett, Carl S. Rauh, Amy Sabrin and Katharine S. Sexton
    were on the briefs.
    Douglas N. Letter, Attorney, U.S. Department of Justice,
    argued the cause for amicus curiae the Attorney General,
    with whom Janet Reno, Attorney General, Frank W. Hunger,
    Assistant Attorney General, Stephen W. Preston, Deputy
    Assistant Attorney General, and Stephanie R. Marcus, Attor-
    ney, were on the brief.
    Kenneth W. Starr, Independent Counsel and Brett M.
    Kavanaugh, Associate Independent Counsel, argued the
    causes for appellee the United States, with whom Joseph M.
    Ditkoff, Associate Independent Counsel, was on the brief.
    Before:  Randolph, Rogers and Tatel, Circuit Judges.
    Opinion for the Court filed Per Curiam.
    Opinion dissenting from Part II and concurring in part and
    dissenting in part from Part III filed by Circuit Judge Tatel.
    Per Curiam:  In these expedited appeals, the principal
    question is whether an attorney in the Office of the President,
    having been called before a federal grand jury, may refuse,
    on the basis of a government attorney-client privilege, to
    answer questions about possible criminal conduct by govern-
    ment officials and others.  To state the question is to suggest
    the answer, for the Office of the President is a part of the
    federal government, consisting of government employees do-
    ing government business, and neither legal authority nor
    policy nor experience suggests that a federal government
    entity can maintain the ordinary common law attorney-client
    privilege to withhold information relating to a federal criminal
    offense.  The Supreme Court and this court have held that
    even the constitutionally based executive privilege for presi-
    dential communications fundamental to the operation of the
    government can be overcome upon a proper showing of need
    for the evidence in criminal trials and in grand jury proceed-
    ings.  See United States v. Nixon, 
    418 U.S. 683
    , 707-12
    (1974);  In re Sealed Case (Espy), 
    121 F.3d 729
    , 736-38 (D.C.
    Cir. 1997).  In the context of federal criminal investigations
    and trials, there is no basis for treating legal advice different-
    ly from any other advice the Office of the President receives
    in performing its constitutional functions.  The public interest
    in honest government and in exposing wrongdoing by govern-
    ment officials, as well as the tradition and practice, acknowl-
    edged by the Office of the President and by former White
    House Counsel, of government lawyers reporting evidence of
    federal criminal offenses whenever such evidence comes to
    them, lead to the conclusion that a government attorney may
    not invoke the attorney-client privilege in response to grand
    jury questions seeking information relating to the possible
    commission of a federal crime.  The extent to which the
    communications of White House Counsel are privileged
    against disclosure to a federal grand jury depends, therefore,
    on whether the communications contain information of possi-
    ble criminal offenses.  Additional protection may flow from
    executive privilege [[
    ]].*
    I.
    On January 16, 1998, at the request of the Attorney
    General, the Division for the Purpose of Appointing Indepen-
    dent Counsels issued an order expanding the prosecutorial
    jurisdiction of Independent Counsel Kenneth W. Starr.  Pre-
    viously, the main focus of Independent Counsel Starr's inqui-
    ry had been on financial transactions involving President
    Clinton when he was Governor of Arkansas, known popularly
    as the Whitewater inquiry.  The order now authorized Starr
    to investigate "whether Monica Lewinsky or others suborned
    perjury, obstructed justice, intimidated witnesses, or other-
    wise violated federal law" in connection with the civil lawsuit
    against the President of the United States filed by Paula
    Jones.   In re Motions of Dow Jones & Co., 
    142 F.3d 496
    ,
    497-98 (D.C. Cir.), petition for cert. filed, 
    66 U.S.L.W. 3790
    (U.S. June 3, 1998) (No. 97-1959) (quoting order).  "Thereaf-
    ter, a grand jury here began receiving evidence about Monica
    Lewinsky and President Clinton, and others.... "  Id. at 498.
    On January 30, 1998, the grand jury issued a subpoena to
    Bruce R. Lindsey, an attorney admitted to practice in Arkan-
    sas.  Lindsey currently holds two positions:  Deputy White
    __________
    *  Double brackets signify sealed material.
    House Counsel and Assistant to the President.  On February
    18, February 19, and March 12, 1998, Lindsey appeared
    before the grand jury and declined to answer certain ques-
    tions on the ground that the questions represented informa-
    tion protected from disclosure by a government attorney-
    client privilege applicable to Lindsey's communications
    with the President as Deputy White House Counsel,
    as well as by executive privilege, and [[
    ]].  Lindsey also claimed work product protec-
    tions related to the attorney-client privilege[[   ]].
    On March 6, 1998, the Independent Counsel moved to
    compel Lindsey's testimony.  The district court granted that
    motion on May 4, 1998.  The court concluded that the Presi-
    dent's executive privilege claim failed in light of the Indepen-
    dent Counsel's showing of need and unavailability.  See In re
    Sealed Case (Espy), 121 F.3d at 754.  It rejected Lindsey's
    government attorney-client privilege claim on similar
    grounds, ruling that the President possesses an attorney-
    client privilege when consulting in his official capacity with
    White House Counsel, but that the privilege is qualified in the
    grand jury context and may be overcome upon a sufficient
    showing of need for the subpoenaed communications and
    unavailability from other sources. [[
    ]].
    [[ ]] the Office of the President [[
    ]] appealed the order granting the motion to
    compel Lindsey's testimony, challenging the district court's
    construction of both the government attorney-client privilege
    and [[     ]].  The Independent Counsel then petitioned
    the Supreme Court to review the district court's decision on
    those issues, among others, before judgment by this court.
    On June 4, 1998, the Supreme Court denied certiorari, while
    indicating its expectation that "the Court of Appeals will
    proceed expeditiously to decide this case."  United States v.
    Clinton, 
    118 S. Ct. 2079
     (1998).  Following an expedited
    briefing schedule, on June 29, 1998, this court heard argu-
    ment on the attorney-client issues.  Neither the Office of the
    President nor the President in his personal capacity has
    appealed the district court's ruling on executive privilege.  In
    Part II we address the availability of the government attor-
    ney-client privilege;  [[
    ]].
    II.
    The attorney-client privilege protects confidential communi-
    cations made between clients and their attorneys when the
    communications are for the purpose of securing legal advice
    or services.  See In re Sealed Case, 
    737 F.2d 94
    , 98-99 (D.C.
    Cir. 1984).  It "is one of the oldest recognized privileges for
    confidential communications."  Swidler & Berlin v. United
    States, No. 97-1192, 
    1998 WL 333019
    , at *3 (U.S. June 25,
    1998).
    The Office of the President contends that Lindsey's com-
    munications with the President and others in the White
    House should fall within this privilege both because the
    President, like any private person, needs to communicate
    fully and frankly with his legal advisors, and because the
    current grand jury investigation may lead to impeachment
    proceedings, which would require a defense of the President's
    official position as head of the executive branch of govern-
    ment, presumably with the assistance of White House Coun-
    sel.  The Independent Counsel contends that an absolute
    government attorney-client privilege would be inconsistent
    with the proper role of the government lawyer and that the
    President should rely only on his private lawyers for fully
    confidential counsel.
    Federal courts are given the authority to recognize privi-
    lege claims by Rule 501 of the Federal Rules of Evidence,
    which provides that
    [e]xcept as otherwise required by the Constitution of the
    United States or provided by Act of Congress or in rules
    prescribed by the Supreme Court pursuant to statutory
    authority, the privilege of a witness, person, government,
    State, or political subdivision thereof shall be governed
    by the principles of the common law as they may be
    interpreted by the courts of the United States in the
    light of reason and experience.
    Fed. R. Evid. 501.  Although Rule 501 manifests a congres-
    sional desire to provide the courts with the flexibility to
    develop rules of privilege on a case-by-case basis, see Tram-
    mel v. United States, 
    445 U.S. 40
    , 47 (1980), the Supreme
    Court has been "disinclined to exercise this authority expan-
    sively," University of Pa. v. EEOC, 
    493 U.S. 182
    , 189 (1990).
    "[T]hese exceptions to the demand for every man's evidence
    are not lightly created nor expansively construed, for they are
    in derogation of the search for truth."  Nixon, 
    418 U.S. at 710
    ;  see also Trammel, 
    445 U.S. at 50
    .  Consequently, feder-
    al courts do not recognize evidentiary privileges unless doing
    so "promotes sufficiently important interests to outweigh the
    need for probative evidence."  
    Id. at 51
    .
    The Supreme Court has not articulated a precise test to
    apply to the recognition of a privilege, but it has "placed
    considerable weight upon federal and state precedent," In re
    Sealed Case (Secret Service), No. 98-3069, 
    1998 WL 370584
    ,
    at *3 (D.C. Cir. July 7, 1998), and on the existence of "a
    'public good transcending the normally predominant principle
    of utilizing all rational means for ascertaining the truth.' "
    Jaffee v. Redmond, 
    518 U.S. 1
    , 9 (1996) (quoting Trammel,
    
    445 U.S. at 50
     (quoting Elkins v. United States, 
    364 U.S. 206
    ,
    234 (1960) (Frankfurter, J., dissenting))).  That public good
    should be shown "with a high degree of clarity and certainty."
    In re Sealed Case (Secret Service), 
    1998 WL 370584
    , at *4.
    A.
    Courts, commentators, and government lawyers have long
    recognized a government attorney-client privilege in several
    contexts.  Much of the law on this subject has developed in
    litigation about exemption five of the Freedom of Information
    Act ("FOIA").  See 5 U.S.C. s 552(b)(5) (1994).  Under that
    exemption, "intra-agency memorandums or letters which
    would not be available by law to a party other than an agency
    in litigation with the agency" are excused from mandatory
    disclosure to the public.  Id.;  see also S. Rep. No. 89-813, at 2
    (1965) (including within exemption five "documents which
    would come within the attorney-client privilege if applied to
    private parties").  We have recognized that "Exemption 5
    protects, as a general rule, materials which would be protect-
    ed under the attorney-client privilege."  Coastal States Gas
    Corp. v. Department of Energy, 
    617 F.2d 854
    , 862 (D.C. Cir.
    1980).  "In the governmental context, the 'client' may be the
    agency and the attorney may be an agency lawyer."  Tax
    Analysts v. IRS, 
    117 F.3d 607
    , 618 (D.C. Cir. 1997);  see also
    Brinton v. Department of State, 
    636 F.2d 600
    , 603-04 (D.C.
    Cir. 1980).  In Lindsey's case, his client--to the extent he
    provided legal services--would be the Office of the Presi-
    dent.1
    Exemption five does not itself create a government attor-
    ney-client privilege.  Rather, "Congress intended that agen-
    cies should not lose the protection traditionally afforded
    through the evidentiary privileges simply because of the
    passage of the FOIA."  Coastal States, 
    617 F.2d at 862
    .  In
    discussing the government attorney-client privilege applicable
    to exemption five, we have mentioned the usual advantages:
    the attorney-client privilege has a proper role to play in
    exemption five cases....  In order to ensure that a
    client receives the best possible legal advice, based on a
    full and frank discussion with his attorney, the attorney-
    client privilege assures him that confidential communica-
    tions to his attorney will not be disclosed without his
    consent.  We see no reason why this same protection
    __________
    1  [[
    ]]
    should not be extended to an agency's communications
    with its attorneys under exemption five.
    Mead Data Cent., Inc. v. United States Dep't of Air Force,
    
    566 F.2d 242
    , 252 (D.C. Cir. 1977).  Thus, when "the Govern-
    ment is dealing with its attorneys as would any private party
    seeking advice to protect personal interests, and needs the
    same assurance of confidentiality so it will not be deterred
    from full and frank communications with its counselors,"
    exemption five applies.  Coastal States, 
    617 F.2d at 863
    .
    Furthermore, the proposed (but never enacted) Federal
    Rules of Evidence concerning privileges, to which courts have
    turned as evidence of common law practices, see, e.g., United
    States v. Gillock, 
    445 U.S. 360
    , 367-68 (1980);  In re Bieter
    Co., 
    16 F.3d 929
    , 935 (8th Cir. 1994);  Linde Thomson Lang-
    worthy Kohn & Van Dyke v. Resolution Trust Corp., 
    5 F.3d 1508
    , 1514 (D.C. Cir. 1993);  United States v. (Under Seal),
    
    748 F.2d 871
    , 874 n.5 (4th Cir. 1984);  United States v.
    Mackey, 
    405 F. Supp. 854
    , 858 (E.D.N.Y. 1975), recognized a
    place for a government attorney-client privilege.  Proposed
    Rule 503 defined "client" for the purposes of the attorney-
    client privilege to include "a person, public officer, or corpora-
    tion, association, or other organization or entity, either public
    or private."  Proposed Fed. R. Evid. 503(a)(1), reprinted in 
    56 F.R.D. 183
    , 235 (1972).  The commentary to the proposed
    rule explained that "[t]he definition of 'client' includes govern-
    mental bodies."  
    Id.
     advisory committee's note.  The Restate-
    ment also extends attorney-client privilege to government
    entities.  See Restatement (Third) of the Law Governing
    Lawyers s 124 (Proposed Final Draft No. 1, 1996) [hereinaf-
    ter Restatement].
    The practice of attorneys in the executive branch reflects
    the common understanding that a government attorney-client
    privilege functions in at least some contexts.  The Office of
    Legal Counsel in the Department of Justice concluded in 1982
    that
    [a]lthough the attorney-client privilege traditionally has
    been recognized in the context of private attorney-client
    relationships, the privilege also functions to protect com-
    munications between government attorneys and client
    agencies or departments, as evidenced by its inclusion in
    the FOIA, much as it operates to protect attorney-client
    communications in the private sector.
    Theodore B. Olsen, Assistant Attorney General, Office of
    Legal Counsel, Confidentiality of the Attorney General's
    Communications in Counseling the President, 6 Op. Off.
    Legal Counsel 481, 495 (1982).  The Office of Legal Counsel
    also concluded that when government attorneys stand in the
    shoes of private counsel, representing federal employees sued
    in their individual capacities, confidential communications be-
    tween attorney and client are privileged.  See Antonin Scalia,
    Assistant Attorney General, Office of Legal Counsel, Disclo-
    sure of Confidential Information Received by U.S. Attorney
    in the Course of Representing a Federal Employee (Nov. 30,
    1976);  Ralph W. Tarr, Acting Assistant Attorney General,
    Office of Legal Counsel, Duty of Government Lawyer Upon
    Receipt of Incriminating Information in the Course of an
    Attorney-Client Relationship with Another Government Em-
    ployee (Mar. 29, 1985);  see also 28 C.F.R. s 50.15(a)(3)
    (1998).
    B.
    Recognizing that a government attorney-client privilege
    exists is one thing.  Finding that the Office of the President
    is entitled to assert it here is quite another.
    It is settled law that the party claiming the privilege bears
    the burden of proving that the communications are protected.
    As oft-cited definitions of the privilege make clear, only
    communications that seek "legal advice" from "a professional
    legal adviser in his capacity as such" are protected.  See 8
    John Henry Wigmore, Evidence in Trials at Common Law
    s 2292, at 554 (McNaughton rev. 1961).  Or, in a formulation
    we have adopted, the privilege applies only if the person to
    whom the communication was made is "a member of the bar
    of a court" who "in connection with th[e] communication is
    acting as a lawyer" and the communication was made "for the
    purpose of securing primarily either (i) an opinion on law or
    (ii) legal services or (iii) assistance in some legal proceeding."
    In re Sealed Case, 
    737 F.2d at 98-99
     (quoting United States
    v. United Shoe Machinery Corp., 
    89 F. Supp. 357
    , 358-59
    (D.Mass. 1950)).
    On the record before us, it seems likely that at least some
    of the conversations for which Lindsey asserted government
    attorney-client privilege did not come within the formulation
    just quoted.  [[
    ]].  Both of these subjects arose from the expanded juris-
    diction of the Independent Counsel, which did not become
    public until January 20, 1998.  Before then, any legal advice
    Lindsey rendered in connection with Jones v. Clinton, a
    lawsuit involving President Clinton in his personal capacity,
    likely could not have been covered by government attorney-
    client privilege.2  [[
    ]].  According to the Restatement, "consultation with one
    admitted to the bar but not in that other person's role as
    __________
    2  We do not foreclose a showing by Lindsey when he appears
    again before the grand jury that prior to January 20, 1998, he gave
    legal advice as Deputy White House Counsel in regard to how
    lawyer is not protected."  Restatement s 122 cmt. c.
    "[W]here one consults an attorney not as a lawyer but as a
    friend or as a business adviser or banker, or negotiator ...
    the consultation is not professional nor the statement privi-
    leged."  1 McCormick on Evidence s 88, at 322-24 (4th ed.
    1992) (footnotes omitted).  Thus Lindsey's advice on political,
    strategic, or policy issues, valuable as it may have been,
    would not be shielded from disclosure by the attorney-client
    privilege.
    As for conversations after January 20th, the Office of the
    President must "present the underlying facts demonstrating
    the existence of the privilege" in order to carry its burden.
    See FTC v. Shaffner, 
    626 F.2d 32
    , 37 (7th Cir. 1980).  A
    blanket assertion of the privilege will not suffice.  Rather,
    "[t]he proponent must conclusively prove each element of the
    privilege."  SEC v. Gulf & Western Indus., 
    518 F. Supp. 675
    ,
    682 (D.D.C. 1981).  In response to the Independent Counsel's
    questions, Lindsey invariably asserted executive privilege and
    attorney-client privilege.  On this record, it is impossible to
    determine whether Lindsey believed that both privileges
    applied or whether he meant to invoke them on an "either/or"
    basis.  As we have said, the district court's rejection of the
    executive privilege claim has not been appealed.  With this
    privilege out of the picture, the Office of the President had to
    show that Lindsey's conversations "concerned the seeking of
    legal advice" and were between President Clinton and Lind-
    sey or between others in the White House and Lindsey while
    Lindsey was "acting in his professional capacity" as an attor-
    ney.  Shaffner, 
    626 F.2d at 37
    .
    With regard to most of the communications that were the
    subject of questions before the grand jury, it does not appear
    to us that any such showing was made in the grand jury by
    Lindsey or in the district court by the Office of the President
    in the proceedings leading to the order to compel his testimo-
    ny.  This may be attributable to the parties' focus in the
    district court.  The arguments on both sides centered on
    whether any attorney-client privilege protected the conversa-
    tions about which Lindsey was asked, not on whether--if the
    privilege could be invoked--the conversations were covered
    __________
    private litigation involving the President was affecting the Office of
    the President.
    by it.  In light of this, and in view of the Administration's
    abandonment of its executive privilege claim, Lindsey would
    have to return to the grand jury no matter how we ruled on
    the government attorney-client privilege claim.
    There is, however, no good reason for withholding decision
    on the issues now before us.  We have little doubt that at
    least one of Lindsey's conversations subject to grand jury
    questioning "concerned the seeking of legal advice" and was
    between President Clinton and Lindsey or between others in
    the White House and Lindsey while Lindsey was "acting in
    his professional capacity" as an attorney.  See 
    id.
     [[
    ]].  The issue whether the government attorney-
    client privilege could be invoked in these circumstances is
    therefore ripe for decision.
    Moreover, the case has been fully briefed and argued.  The
    Supreme Court has asked us to expedite our disposition of
    these appeals.  Sending this case back for still another round
    of grand jury testimony, assertions of privileges and immuni-
    ties, a district court judgment, and then another appeal would
    be inconsistent with the Supreme Court's request and would
    do nothing but prolong the grand jury's investigation.  The
    parties, we believe, are entitled now to a ruling to govern
    Lindsey's future grand jury appearance.
    We therefore turn to the question whether an attorney-
    client privilege permits a government lawyer to withhold from
    a grand jury information relating to the commission of possi-
    ble crimes by government officials and others.  Although the
    cases decided under FOIA recognize a government attorney-
    client privilege that is rather absolute in civil litigation, those
    cases do not necessarily control the application of the privi-
    lege here.  The grand jury, a constitutional body established
    in the Bill of Rights, "belongs to no branch of the institutional
    Government, serving as a kind of buffer or referee between
    the Government and the people," United States v. Williams,
    
    504 U.S. 36
    , 47 (1992), while the Independent Counsel is by
    statute an officer of the executive branch representing the
    United States.  For matters within his jurisdiction, the Inde-
    pendent Counsel acts in the role of the Attorney General as
    the country's chief law enforcement officer.  See 28 U.S.C.
    s 594(a) (1994).  Thus, although the traditional privilege be-
    tween attorneys and clients shields private relationships from
    inquiry in either civil litigation or criminal prosecution, com-
    peting values arise when the Office of the President resists
    demands for information from a federal grand jury and the
    nation's chief law enforcement officer.  As the drafters of the
    Restatement recognized, "More particularized rules may be
    necessary where one agency of government claims the privi-
    lege in resisting a demand for information by another.  Such
    rules should take account of the complex considerations of
    governmental structure, tradition, and regulation that are
    involved."  Restatement s 124 cmt. b. For these reasons,
    others have agreed that such "considerations" counsel against
    "expansion of the privilege to all governmental entities" in all
    cases.  24 Charles Alan Wright & Kenneth W. Graham, Jr.,
    Federal Practice and Procedure s 5475, at 125 (1986).
    The question whether a government attorney-client privi-
    lege applies in the federal grand jury context is one of first
    impression in this circuit, and the parties dispute the import
    of the lack of binding authority.  The Office of the President
    contends that, upon recognizing a government attorney-client
    privilege, the court should find an exception in the grand jury
    context only if practice and policy require.  To the contrary,
    the Independent Counsel contends, in essence, that the justi-
    fication for any extension of a government attorney-client
    privilege to this context needs to be clear.  These differences
    in approach are not simply semantical:  they represent differ-
    ent versions of what is the status quo.  To argue about an
    "exception" presupposes that the privilege otherwise applies
    in the federal grand jury context;  to argue about an "exten-
    sion" presupposes the opposite.  In Swidler & Berlin, the
    Supreme Court considered whether, as the Independent
    Counsel contended, it should create an exception to the
    personal attorney-client privilege allowing disclosure of confi-
    dences after the client's death.  See Swidler & Berlin, 
    1998 WL 333019
    , at *2.  After finding that the Independent Coun-
    sel was asking the Court "not simply to 'construe' the privi-
    lege, but to narrow it, contrary to the weight of the existing
    body of caselaw," the Court concluded that the Independent
    Counsel had not made a sufficient showing to warrant the
    creation of such an exception to the settled rule.  Id. at *7.
    In the instant case, by contrast, there is no such existing
    body of caselaw upon which to rely and no clear principle that
    the government attorney-client privilege has as broad a scope
    as its personal counterpart.  Because the "attorney-client
    privilege must be 'strictly confined within the narrowest
    possible limits consistent with the logic of its principle,' " In
    re Sealed Case, 
    676 F.2d 793
    , 807 n.44 (D.C. Cir. 1982)
    (quoting In re Grand Jury Investigation, 
    599 F.2d 1224
    , 1235
    (3d Cir. 1979));  accord Trammel, 
    445 U.S. at 50
    , and because
    the government attorney-client privilege is not recognized in
    the same way as the personal attorney-client privilege ad-
    dressed in Swidler & Berlin, we believe this case poses the
    question whether, in the first instance, the privilege extends
    as far as the Office of the President would like.  In other
    words, pursuant to our authority and duty under Rule 501 of
    the Federal Rules of Evidence to interpret privileges "in light
    of reason and experience," Fed. R. Evid. 501, we view our
    exercise as one in defining the particular contours of the
    government attorney-client privilege.
    When an executive branch attorney is called before a
    federal grand jury to give evidence about alleged crimes
    within the executive branch, reason and experience, duty, and
    tradition dictate that the attorney shall provide that evidence.
    With respect to investigations of federal criminal offenses,
    and especially offenses committed by those in government,
    government attorneys stand in a far different position from
    members of the private bar.  Their duty is not to defend
    clients against criminal charges and it is not to protect
    wrongdoers from public exposure.  The constitutional respon-
    sibility of the President, and all members of the Executive
    Branch, is to "take Care that the Laws be faithfully execut-
    ed."  U.S. Const. art. II, s 3.  Investigation and prosecution
    of federal crimes is one of the most important and essential
    functions within that constitutional responsibility.  Each of
    our Presidents has, in the words of the Constitution, sworn
    that he "will faithfully execute the Office of President of the
    United States, and will to the best of [his] Ability, preserve,
    protect and defend the Constitution of the United States."
    
    Id.
     art. II, s 1, cl. 8.  And for more than two hundred years
    each officer of the Executive Branch has been bound by oath
    or affirmation to do the same.  See 
    id.
     art.  VI, cl. 3;  see also
    28 U.S.C. s 544 (1994).  This is a solemn undertaking, a
    binding of the person to the cause of constitutional govern-
    ment, an expression of the individual's allegiance to the
    principles embodied in that document.  Unlike a private
    practitioner, the loyalties of a government lawyer therefore
    cannot and must not lie solely with his or her client agency.3
    The oath's significance is underscored by other evocations
    of the ethical duties of government lawyers.4  The Profession-
    __________
    3  We recognize, as our dissenting colleague emphasizes, that
    every lawyer must take an oath to enter the bar of any court.  But
    even after entering the bar, a government attorney must take
    another oath to enter into government service;  that in itself shows
    the separate meaning of the government attorney's oath.  More-
    over, the oath is significant to our analysis only to the extent that it
    underlies the fundamental differences in the roles of government
    and private attorneys--of particular note, the fact that private
    attorneys cannot take official actions.
    4  Indeed, the responsibilities of government lawyers to the
    public have long governed the actions they can take on behalf of
    their "client":
    The United States Attorney is the representative not of an
    ordinary party to a controversy, but of a sovereignty whose
    obligation to govern impartially is as compelling as its obli-
    al Ethics Committee of the Federal Bar Association has
    described the public trust of the federally employed lawyer as
    follows:
    [T]he government, over-all and in each of its parts, is
    responsible to the people in our democracy with its
    representative form of government.  Each part of the
    government has the obligation of carrying out, in the
    public interest, its assigned responsibility in a manner
    consistent with the Constitution, and the applicable laws
    and regulations.  In contrast, the private practitioner
    represents the client's personal or private interest....
    [W]e do not suggest, however, that the public is the
    client as the client concept is usually understood.  It is to
    say that the lawyer's employment requires him to ob-
    serve in the performance of his professional responsibili-
    ty the public interest sought to be served by the govern-
    mental organization of which he is a part.
    Federal Bar Association Ethics Committee, The Government
    Client and Confidentiality:  Opinion 73-1, 32 Fed. B.J. 71, 72
    (1973).  Indeed, before an attorney in the Justice Department
    can step into the shoes of private counsel to represent a
    federal employee sued in his or her individual capacity, the
    Attorney General must determine whether the representation
    would be in the interest of the United States.  See 28 C.F.R.
    s 50.15(a).  The obligation of a government lawyer to uphold
    the public trust reposed in him or her strongly militates
    against allowing the client agency to invoke a privilege to
    prevent the lawyer from providing evidence of the possible
    commission of criminal offenses within the government.  As
    __________
    gation to govern at all;  and whose interest ... is not that it
    shall win a case, but that justice shall be done.
    Berger v. United States, 
    295 U.S. 78
    , 88 (1935).  In keeping with
    these interests, prosecutors must disclose to the defendant exculpa-
    tory evidence, see Brady v. Maryland, 
    373 U.S. 83
    , 87 (1963), and
    must try to "seek justice, not merely to convict," Model Code of
    Professional Responsibility EC 7-13 (1980).  Similarly, the gov-
    ernment lawyer in a civil action must "seek justice" and avoid unfair
    settlements or results.  
    Id.
     EC 7-14.
    Judge Weinstein put it, "[i]f there is wrongdoing in govern-
    ment, it must be exposed....  [The government lawyer's]
    duty to the people, the law, and his own conscience requires
    disclosure.... "  Jack B. Weinstein, Some Ethical and Polit-
    ical Problems of a Government Attorney, 18 Maine L. Rev.
    155, 160 (1966).
    This view of the proper allegiance of the government
    lawyer is complemented by the public's interest in uncovering
    illegality among its elected and appointed officials.  While the
    President's constitutionally established role as superintendent
    of law enforcement provides one protection against wrongdo-
    ing by federal government officials, see United States v.
    Valenzuela-Bernal, 
    458 U.S. 858
    , 863 (1982), another protec-
    tion of the public interest is through having transparent and
    accountable government.5  As James Madison observed,
    [a] popular Government, without popular information, or
    the means of acquiring it, is but a Prologue to a Farce or
    a Tragedy;  or, perhaps both.  Knowledge will forever
    govern ignorance:  And a people who mean to be their
    own Governors, must arm themselves with the power
    which knowledge gives.
    Letter from James Madison to W.T. Barry (Aug. 4, 1822), in
    9 The Writings of James Madison 103 (Gaillard Hunt ed.,
    1910).  This court has accordingly recognized that "openness
    in government has always been thought crucial to ensuring
    that the people remain in control of their government."  In re
    Sealed Case (Espy), 121 F.3d at 749.  Privileges work against
    these interests because their recognition "creates the risk
    that a broad array of materials in many areas of the executive
    branch will become 'sequester[ed]' from public view."  Id.
    (quoting Wolfe v. Department of Health & Human Servs., 
    815 F.2d 1527
    , 1533 (D.C. Cir. 1987)).  Furthermore, "to allow
    any part of the federal government to use its in-house attor-
    __________
    5  Congress has clearly indicated, as a matter of policy, that
    federal employees should not withhold information relating to possi-
    ble criminal misconduct by federal employees on any basis.  We
    discuss at more length Congress's recognition of these concerns
    below in our discussion of 28 U.S.C. s 535(b).
    neys as a shield against the production of information rele-
    vant to a federal criminal investigation would represent a
    gross misuse of public assets."  In re Grand Jury Subpoena
    Duces Tecum, 
    112 F.3d 910
    , 921 (8th Cir.), cert. denied, 
    117 S. Ct. 2482
     (1997).
    Examination of the practice of government attorneys fur-
    ther supports the conclusion that 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.  The Office of the
    President has traditionally adhered to the precepts of 28
    U.S.C. s 535(b), which provides that
    [a]ny information ... 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 Attor-
    ney General.
    28 U.S.C. s 535(b) (1994).  We need not decide whether
    section 535(b) alone requires White House Counsel to testify
    before a grand jury.6  The statute does not clearly apply to
    the Office of the President.  The Office is neither a "depart-
    ment," as that term is defined by the statute, see 5 U.S.C.
    s 101 (1994);  28 U.S.C. s 451 (1994);  Haddon v. Walters, 
    43 F.3d 1488
    , 1490 (D.C. Cir. 1995) (per curiam), nor an "agen-
    cy," see Kissinger v. Reporters Comm. for Freedom of the
    Press, 
    445 U.S. 136
    , 156 (1980) (FOIA case);  see also Arm-
    strong v. Executive Office of the President, 
    1 F.3d 1274
    , 1295
    __________
    6  28 U.S.C. s 535(a) authorizes the Attorney General to "inves-
    tigate any violation of title 18 [the federal criminal code] involving
    Government officers and employees."  The Independent Counsel
    fills the shoes of the Attorney General in this regard because
    Congress has given the Independent Counsel "with respect to all
    matters in [his] prosecutorial jurisdiction ... full power and inde-
    pendent authority to exercise all investigative and prosecutorial
    functions and powers of ... the Attorney General."  28 U.S.C.
    s 594(a);  see In re Sealed Case (Secret Service), 
    1998 WL 370584
    ,
    at *7.
    (D.C. Cir. 1993) (per curiam);  National Sec. Archive v.
    Archivist of the United States, 
    909 F.2d 541
    , 545 (D.C.Cir.
    1990) (per curiam).  However, at the very least "[section]
    535(b) evinces a strong congressional policy that executive
    branch employees must report information" relating to viola-
    tions of Title 18, the federal criminal code.  In re Sealed Case
    (Secret Service), 
    1998 WL 370584
    , at *7.  As the House
    Committee Report accompanying section 535 explains, "[t]he
    purpose" of the provision is to "require the reporting by the
    departments and agencies of the executive branch to the
    Attorney General of information coming to their attention
    concerning any alleged irregularities on the part of officers
    and employees of the Government."  H.R. Rep. No. 83-2622,
    at 1 (1954).  Section 535(b) suggests that all government
    employees, including lawyers, are duty-bound not to withhold
    evidence of federal crimes.
    Furthermore, government officials holding top legal posi-
    tions have concluded, in light of section 535(b), that White
    House lawyers cannot keep evidence of crimes committed by
    government officials to themselves.  In a speech delivered
    after the Kissinger FOIA case was handed down, Lloyd
    Cutler, who served as White House Counsel in the Carter and
    Clinton Administrations, discussed the "rule of making it your
    duty, if you're a Government official as we as lawyers are, a
    statutory duty to report to the Attorney General any evidence
    you run into of a possible violation of a criminal statute."
    Lloyd N. Cutler, The Role of the Counsel to the President of
    the United States, 35 Record of the Ass'n of the Bar of the
    City of New York No. 8, at 470, 472 (1980).  Accordingly,
    "[w]hen you hear of a charge and you talk to someone in the
    White House ... about some allegation of misconduct, almost
    the first thing you have to say is, 'I really want to know about
    this, but anything you tell me I'll have to report to the
    Attorney General.' "  
    Id.
      Similarly, during the Nixon admin-
    istration, Solicitor General Robert H. Bork told an adminis-
    tration official who invited him to join the President's legal
    defense team:  "A government attorney is sworn to uphold
    the Constitution.  If I come across evidence that is bad for
    the President, I'll have to turn it over.  I won't be able to sit
    on it like a private defense attorney."  A Conversation with
    Robert Bork, D.C. Bar Rep., Dec. 1997-Jan. 1998, at 9.
    The Clinton Administration itself endorsed this view as
    recently as a year ago.  In the proceedings leading to the
    Supreme Court's denial of certiorari with regard to the
    Eighth Circuit's decision in In re Grand Jury Subpoena
    Duces Tecum, the Office of the President assured the Su-
    preme Court that it "embraces the principles embodied in
    Section 535(b)" and acknowledged that "the Office of the
    President has a duty, recognized in official policy and prac-
    tice, to turn over evidence of the crime."  Reply Brief for
    Office of the President at 7, Office of the President v. Office of
    Independent Counsel, 
    117 S. Ct. 2482
     (1997) (No. 96-1783).
    The Office of the President further represented that "on
    various occasions" it had "referred information to the Attor-
    ney General reflecting the possible commission of a criminal
    offense--including information otherwise protected by attor-
    ney-client privilege."  
    Id.
      At oral argument, counsel for the
    Office of the President reiterated this position.  In addition,
    the White House report on possible misdeeds relating to the
    White House Travel Office stated that "[i]f there is a reason-
    able suspicion of a crime ... about which White House
    personnel may have knowledge, the initial communication of
    this information should be made to the Attorney General, the
    Deputy Attorney General, or the Associate Attorney Gener-
    al."  White House Travel Office Management Review 23
    (1993).
    We are not aware of any previous deviation from this
    understanding of the role of government counsel.  We know
    that Nixon White House Counsel Fred Buzhardt testified
    before the Watergate grand jury without invoking attorney-
    client privilege, although not much may be made of this.7  See
    Anthony Ripley, Milk Producers' Group Fined $5,000 for
    Nixon Gifts, N.Y. Times, May 7, 1974, at 38.  On the other
    __________
    7  President Nixon waived executive privilege and attorney-
    client privilege before the grand jury.  See Special Prosecution
    Force, Watergate Report 88 (1975) [hereinafter Watergate Re-
    port].
    hand, the Office of the President points out that C. Boyden
    Gray, White House Counsel during the Bush Administration,
    and his deputy, John Schmitz, refused to be interviewed by
    the Independent Counsel investigating the Iran-Contra affair
    and only produced documents subject to an agreement that
    "any privilege against disclosure ... including the attorney-
    client privilege" was not waived.  1 Lawrence E. Walsh,
    Final Report of the Independent Counsel for Iran/Contra
    Matters 478-79 & n.52 (1993).  However, the Independent
    Counsel in that investigation had not subpoenaed Gray or
    Schmitz to testify before a grand jury, and there is no
    indication that the information sought from them constituted
    evidence of any criminal offense.  Independent Counsel
    Walsh apparently sought to question these individuals merely
    to complete his final report.  See 
    id.
      In any event, even
    outside the grand jury context, the general practice of gov-
    ernment counsel has been to cooperate with the investigations
    of independent counsels.  For example, Peter Wallison, White
    House Counsel under President Reagan, produced his diary
    for the Iran-Contra investigation and cooperated in other
    ways.   See id. at 44, 470 n.137, 517, 520.  Other government
    attorneys both produced documents and agreed to be inter-
    viewed for that investigation.  See id. at 346-48, 366-68, 536
    & nn.116-17, 537.
    The Office of the President asserts two principal contribu-
    tions to the public good that would come from a government
    attorney's withholding evidence from a grand jury on the
    basis of an attorney-client privilege.  First, it maintains that
    the values of candor and frank communications that the
    privilege embodies in every context would apply to Lindsey's
    communications with the President and others in the White
    House.  Government officials, the Office of the President
    claims, need accurate advice from government attorneys as
    much as private individuals do, but they will be inclined to
    discuss their legal problems honestly with their attorneys
    only if they know that their communications will be confiden-
    tial.
    We may assume that if the government attorney-client
    privilege does not apply in certain contexts this may chill
    some communications between government officials and gov-
    ernment lawyers.  Even so, government officials will still
    enjoy the benefit of fully confidential communications with
    their attorneys unless the communications reveal information
    relating to possible criminal wrongdoing.  And although the
    privacy of these communications may not be absolute before
    the grand jury, the Supreme Court has not been troubled by
    the potential chill on executive communications due to the
    qualified nature of executive privilege.8  Compare Nixon, 
    418 U.S. at 712-13
     (discounting the chilling effects of the qualifi-
    cation of the presidential communications privilege on the
    candor of conversations), with Swidler & Berlin, 
    1998 WL 333019
    , at *6 (stating, in the personal attorney-client privilege
    context, that an uncertain privilege is often no better than no
    privilege at all).  Because both the Deputy White House
    Counsel and the Independent Counsel occupy positions within
    the federal government, their situation is somewhat compara-
    ble to that of corporate officers who seek to keep their
    communications with company attorneys confidential from
    each other and from the shareholders.  Under the widely
    followed doctrine announced in Garner v. Wolfinbarger, 
    430 F.2d 1093
     (5th Cir. 1970), corporate officers are not always
    entitled to assert such privileges against interests within the
    corporation, and accordingly must consult with company at-
    torneys aware that their communications may not be kept
    confidential from shareholders in litigation.  See id. at 1101.
    Any chill on candid communications with government counsel
    flowing from our decision not to extend an absolute attorney-
    client privilege to the grand jury context is both comparable
    and similarly acceptable.
    Moreover, nothing prevents government officials who seek
    completely confidential communications with attorneys from
    consulting personal counsel.  The President has retained
    several private lawyers, and he is entitled to engage in the
    completely confidential communications with those lawyers
    __________
    8  We do not address privilege exceptions relating to military
    secrets or other exempted communications.
    befitting an attorney and a client in a private relationship.
    [[         ]]
    The Office of the President contends that White House
    Counsel's role in preparing for any future impeachment pro-
    ceedings alters the policy analysis.9  The Ethics in Govern-
    ment Act requires the Independent Counsel to "advise the
    House of Representatives of any substantial and credible
    information ... that may constitute grounds for an impeach-
    ment."  28 U.S.C. s 595(c) (1994).  In November 1997, a
    Congressman introduced a resolution in the House of Repre-
    sentatives calling for an inquiry into possible grounds for
    impeachment of the President.  See H.R. Res. 304, 105th
    Cong. (1997).  Thus, to the extent that impeachment proceed-
    ings may be on the horizon, the Office of the President
    contends that White House Counsel must be given maximum
    protection against grand jury inquiries regarding their efforts
    to protect the Office of the President, and the President in his
    personal capacity, against impeachment.  Additionally, the
    Office of the President notes that the Independent Counsel
    serves as a conduit to Congress for information concerning
    grounds for impeachment obtained by the grand jury, and,
    consequently, an exception to the attorney-client privilege
    before the grand jury will effectively abrogate any absolute
    privilege those communications might otherwise enjoy in fu-
    ture congressional investigations and impeachment hearings.
    Although the Independent Counsel and the Office of the
    President agree that White House Counsel can represent the
    President in the impeachment process, the precise contours of
    Counsel's role are far from settled.10  In any event, no matter
    __________
    9  The district court did not rule upon this argument, and hence
    we lack the benefit of that court's thinking in addition to a complete
    record on the nature, scope, and content of communications be-
    tween the President and Deputy White House Counsel with regard
    to the impeachment issue.  See Gilda Marx, Inc. v. Wildwood
    Exercise, Inc., 
    85 F.3d 675
    , 679 (D.C. Cir. 1996) (per curiam).
    10  While a prior Comptroller General has thought that White
    House Counsel could properly be paid out of federal funds for
    representing the President in matters leading up to an impeach-
    what the role should be, impeachment is fundamentally a
    political exercise.  See The Federalist No. 65 (Alexander
    Hamilton);  Joseph Story, Commentaries on the Constitution
    s 764, at 559 (5th ed. 1905).  Impeachment proceedings in the
    House of Representatives cannot be analogized to traditional
    legal processes and even the procedures used by the Senate
    in "trying" an impeachment may not be like those in a judicial
    trial.  See (Walter) Nixon v. United States, 
    506 U.S. 224
    ,
    228-31 (1993);  Story, Commentaries on the Constitution
    s 765, at 559-60.  How the policy and practice supporting the
    common law attorney-client privilege would apply in such a
    political context thus is uncertain.  In preparing for the
    eventuality of impeachment proceedings, a White House
    Counsel in effect serves the President as a political advisor,
    albeit one with legal expertise:  to wit, Lindsey occupies a
    dual position as an Assistant to the President and a Deputy
    White House Counsel.  Thus, information gathered in prepa-
    ration for impeachment proceedings and conversations re-
    garding strategy are presumably covered by executive, not
    attorney-client, privilege.  While the need for secrecy might
    arguably be greater under these circumstances, the district
    court's ruling on executive privilege is not before us.  In
    __________
    ment, see Letter from Elmer B. Staats, U.S. Comptroller General,
    to Rep. John F. Seiberling 7 (Oct. 25, 1974), history yields little
    guidance on the role that White House Counsel would properly play
    in impeachment proceedings.  The only President impeached by the
    House and tried by the Senate, Andrew Johnson, retained private
    counsel, and his Attorney General resigned from office in order to
    assist in his defense.  See William H. Rehnquist, Grand Inquests
    222 (1992).  In contrast, after the House Judiciary Committee
    began an impeachment inquiry into the Watergate scandal, Presi-
    dent Richard Nixon appointed James D. St. Clair as a special
    counsel to the President for Watergate-related matters.  See Wa-
    tergate Report 103.  Although Nixon resigned before the House of
    Representatives voted on any articles of impeachment, St. Clair
    handled much of the President's defense until the President's
    resignation.  See id. at 103-15.  At the very least, nothing prevents
    a President faced with impeachment from retaining private counsel,
    and in turn this makes less clear what might be the division of labor
    between White House Counsel and private counsel.
    addition, in responding to the grand jury investigation and
    gathering information in preparation for future developments
    in accordance with his official duties, White House Counsel
    may need to interact with the President's private attorneys,
    and to that extent other privileges may be implicated.
    [[         ]]
    Nor is our conclusion altered by the Office of the Presi-
    dent's concern over the possibility that Independent Counsel
    will convey otherwise privileged grand jury testimony of
    White House Counsel to Congress.11  Cf. Fed. R. Crim. P. 6(e).
    First, no one can say with certainty the extent to which a
    privilege would generally protect a White House Counsel
    from testifying at a congressional hearing.  The issue is not
    presently before the court.12  See Nixon, 
    418 U.S. at
    712 n.19;
    In re Sealed Case (Espy), 121 F.3d at 739 nn.9-10, 753.
    Second, the particular procedures and evidentiary rules to be
    employed by the House and Senate in any future impeach-
    ment proceedings remain entirely speculative.  Finally,
    whether Congress can abrogate otherwise recognized privi-
    leges in the course of impeachment proceedings may well
    constitute a nonjusticiable political question.  See (Walter)
    Nixon, 
    506 U.S. at 236
    .
    The Supreme Court's recognition in United States v. Nixon
    of a qualified privilege for executive communications severely
    undercuts the argument of the Office of the President regard-
    __________
    11  Contrary to the Office of the President's suggestion, this is
    not a novel concern stemming from the Ethics in Government Act.
    During initial discussions with the Watergate Special Prosecutor,
    "[James] St. Clair was primarily concerned that evidence produced
    for the grand jury not subsequently be provided by [the Special
    Prosecutor] to the House Judiciary Committee for use in its im-
    peachment inquiry."  Watergate Report 104-05.  The Special
    Prosecutor eventually asked the grand jury to transmit an "eviden-
    tiary report" to the House Committee considering President Nix-
    on's impeachment.  Id. at 143.
    12  The Office of the President cites no authority for the proposi-
    tion that communications between White House Counsel and the
    President would be absolutely privileged in congressional proceed-
    ings, but rather merely suggests that they "should" be.
    ing the scope of the government attorney-client privilege.  A
    President often has private conversations with his Vice Presi-
    dent or his Cabinet Secretaries or other members of the
    Administration who are not lawyers or who are lawyers, but
    are not providing legal services.  The advice these officials
    give the President is of vital importance to the security and
    prosperity of the nation, and to the President's discharge of
    his constitutional duties.  Yet upon a proper showing, such
    conversations must be revealed in federal criminal proceed-
    ings.  See Nixon, 
    418 U.S. at 713
    ;  In re Sealed Case (Espy),
    121 F.3d at 745.  Only a certain conceit among those admit-
    ted to the bar could explain why legal advice should be on a
    higher plane than advice about policy, or politics, or why a
    President's conversation with the most junior lawyer in the
    White House Counsel's Office is deserving of more protection
    from disclosure in a grand jury investigation than a Presi-
    dent's discussions with his Vice President or a Cabinet Secre-
    tary.  In short, we do not believe that lawyers are more
    important to the operations of government than all other
    officials, or that the advice lawyers render is more crucial to
    the functioning of the Presidency than the advice coming
    from all other quarters.
    The district court held that a government attorney-client
    privilege existed and was applicable to grand jury proceed-
    ings, but could be overcome, as could an applicable executive
    privilege, upon a showing of need and unavailability else-
    where by the Independent Counsel.  While we conclude that
    an attorney-client privilege may not be asserted by Lindsey
    to avoid responding to the grand jury if he possesses informa-
    tion relating to possible criminal violations, he continues to be
    covered by the executive privilege to the same extent as the
    President's other advisers.  Our analysis, in addition to hav-
    ing the advantages mentioned above, avoids the application of
    balancing tests to the attorney-client privilege--a practice
    recently criticized by the Supreme Court.  See Swidler &
    Berlin, 
    1998 WL 333019
    , at *6.
    In sum, it would be contrary to tradition, common under-
    standing, and our governmental system for the attorney-
    client privilege to attach to White House Counsel in the same
    manner as private counsel.  When government attorneys
    learn, through communications with their clients, of informa-
    tion related to criminal misconduct, they may not rely on the
    government attorney-client privilege to shield such informa-
    tion from disclosure to a grand jury.
    III. [[
    ]].
    IV.
    Accordingly, for the reasons stated in this opinion, we
    affirm [[        ]].
    In accordance with the Supreme Court's expectation that
    "the Court of Appeals will proceed expeditiously to decide
    this case," Clinton, 118 S. Ct. at 2079, any petition for
    rehearing or suggestion for rehearing in banc shall be filed
    within seven days after the date of this decision.
    It is so ordered.
    Tatel, Circuit Judge, dissenting from Part II and concur-
    ring in part and dissenting in part from Part III. The
    attorney-client privilege protects confidential communication
    between clients and their lawyers, whether those lawyers
    work for the private sector or for government.  Although I
    have no doubt that government lawyers working in executive
    departments and agencies enjoy a reduced privilege in the
    face of grand jury subpoenas, I remain unconvinced that
    either "reason" or "experience" (the tools of Rule 501) justi-
    fies this court's abrogation of the attorney-client privilege for
    lawyers serving the Presidency.  This court's far-reaching
    ruling, moreover, may have been unnecessary to give this
    grand jury access to Bruce Lindsey's communications with
    the President, for on this record it is not clear whether those
    communications involved official legal advice that would be
    protected by the attorney-client privilege.  Before limiting
    the attorney-client privilege not just for this President, but
    for all Presidents to come, the court should have first re-
    manded this case to the district court to recall Lindsey to the
    grand jury to determine the precise nature of his communica-
    tions with the President.
    I
    My colleagues and I have no disagreement concerning
    personal legal advice Lindsey may have given the President.
    We agree, and the White House concedes, that the official
    attorney-client privilege does not protect such communica-
    tions, for as a White House employee Lindsey had no authori-
    ty to provide such advice.  Nor do we disagree about political
    advice given to the President by advisers who happen to be
    lawyers.  Such advice is protected, if at all, by the executive
    privilege alone.  Our disagreement centers solely on whether
    a grand jury can pierce the attorney-client privilege with
    respect to official legal advice that the Office of White House
    Counsel gives a sitting President.
    One of the oldest privileges at common law and " 'rooted in
    the imperative need for confidence and trust,' " Jaffee v.
    Redmond, 
    518 U.S. 1
    , 10 (1996) (quoting Trammel v. United
    States, 
    445 U.S. 40
    , 51 (1980)), the attorney-client privilege
    "encourage[s] 'full and frank communication between attor-
    neys and their clients, and thereby promote[s] broader public
    interests in the observance of law and the administration of
    justice.' "   Swidler & Berlin v. United States, No. 97-1192,
    
    1998 WL 333019
    , at *3 (U.S. June 25, 1998) (quoting Upjohn
    Co. v. United States, 
    449 U.S. 383
    , 389 (1981)).  The privilege
    protects client confidences even in the face of grand jury
    subpoenas.  See id. at *2, *7.
    Government attorneys enjoy the attorney-client privilege in
    order to provide reliable legal advice to their governmental
    clients.  "Unless applicable law otherwise provides, the attor-
    ney-client privilege extends to a communication of a govern-
    mental organization ... and of an individual officer ... of a
    governmental organization."  Restatement (Third) of the
    Law Governing Lawyers ("Restatement") s 124 (Proposed
    Final Draft No. 1, 1996);  see also Proposed Fed. R. Evid.
    503(a)(1), reprinted in 
    56 F.R.D. 183
    , 235 (1972).  We have
    explained that where "the Government is dealing with its
    attorneys as would any private party seeking advice to pro-
    tect personal interests, [it] needs the same assurance of
    confidentiality so it will not be deterred from full and frank
    communications with its counselors."  Coastal States Gas
    Corp. v. Department of Energy, 
    617 F.2d 854
    , 863 (D.C. Cir.
    1980);  see also Tax Analysts v. IRS, 
    117 F.3d 607
    , 620 (D.C.
    Cir. 1997) ("Communications revealing ... client confidences
    [between IRS field personnel and IRS counsel regarding
    audit activity] ... are clearly covered by the attorney-client
    privilege....").
    This court now holds that for all government attorneys,
    including those advising a President, the attorney-client privi-
    lege dissolves in the face of a grand jury subpoena.  Accord-
    ing to the court, its new rule "avoids the application of
    balancing tests to the attorney-client privilege--a practice
    recently criticized by the Supreme Court."  Maj. Op. at 26.
    But whether a court abrogates the privilege by applying the
    balancing test rejected in Swidler, or by the rule the court
    adopts today, the chilling effect is precisely the same.
    Clients, in this case 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 viola-
    tions," id. at 18.  Rarely will White House counsel possess
    cold, hard facts about presidential wrongdoing that would
    create a strong public interest in disclosure, yet the very
    possibility that the confidence will be breached will chill
    communications.  See Swidler, 
    1998 WL 333019
    , at *5-6.  As
    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.
    Unlike Jaffee, 
    518 U.S. at 10-11
     (recognizing a federal
    psychotherapy privilege), and In re Sealed Case, No. 98-3069,
    
    1998 WL 370584
    , at *4 (D.C. Cir. July 7, 1998) (declining to
    recognize a protective function privilege for Secret Service
    agents), this case involves not the creation of a new privilege,
    but as in Swidler, the carving out of an exception to an
    already well-established privilege.  See Swidler, 
    1998 WL 333019
    , at *6.  Denying that they are creating an exception,
    my colleagues say that they are "defining the particular
    contours of the government attorney-client privilege," Maj.
    Op. at 14, but no court has suggested that the attorney-client
    privilege must be extended client by client to each new
    governmental entity, proceeding by proceeding.  Rather,
    "[u]nless applicable law otherwise provides," Restatement
    s 124, the privilege applies to all attorneys and all clients,
    regardless of their identities or the nature of the proceeding,
    see Swidler, 
    1998 WL 333019
    , at *6 (finding no case authority
    for civil-criminal distinction).  The question before us, then, is
    whether either "reason" or "experience" (Fed. R. Evid. 501),
    calls for exempting the Presidency from the traditional
    attorney-client relationship that all clients enjoy with their
    lawyers.  See, e.g., Trammel, 
    445 U.S. at 48, 52
     (curtailing
    spousal privilege based on majority trend in state law, the
    disappearance of "ancient" notions of the subordinate status
    of women, and the unpersuasiveness of arguments regarding
    privilege's effect on marital stability).
    As one of its reasons for abrogating the presidential
    attorney-client privilege, the court says that legal advice is no
    different from the advice a President receives from other
    advisers, advice protected only by executive privilege.  Maj.
    Op. at 25-26.  I think the court seriously underestimates the
    independent role and value of the attorney-client privilege.
    Unlike the executive privilege--a broad, constitutionally de-
    rived privilege that protects frank debate between President
    and advisers, see United States v. Nixon, 
    418 U.S. 683
    , 708
    (1974);  In re Sealed Case, 
    121 F.3d 729
    , 742-46 (D.C. Cir.
    1997)--the narrower attorney-client privilege flows not from
    the Constitution, but from the common law, see Swidler, 
    1998 WL 333019
    , at *7.  The attorney-client privilege does not
    protect general policy or political advice--even when given by
    lawyers--but only communications with lawyers "for the pur-
    pose of obtaining legal assistance."  Restatement s 122.  Ne-
    cessitated by the nature of the lawyer's function, the
    attorney-client privilege enables the lawyer as an officer of
    the court properly to advise the client, including facilitating
    compliance with the law.  See Upjohn, 
    449 U.S. at 389
    .  In
    other words, the unique protection the law affords a Presi-
    dent's communications with White House counsel rests not, as
    my colleagues put it, on some "conceit" that "lawyers are
    more important to the operations of government than all
    other officials," Maj. Op. at 26, but rather on the special
    nature of legal advice, and its special need for confidentiality,
    as recognized by centuries of common law.  It therefore
    makes sense that the Presidency possesses both the attorney-
    client and executive privileges, and that courts treat them
    differently.
    The court also cites 28 U.S.C. s 535(b).  Although that
    statute generally supports qualifying--though not abrogat-
    ing--the attorney-client privilege for government attorneys
    working in executive departments and agencies, the court
    acknowledges, as the Attorney General has told us in her
    amicus brief, that section 535(b) does not apply to the Office
    of the President.  The court cites several statements, includ-
    ing former White House Counsel Lloyd Cutler's speech to the
    New York Bar, the White House Travel Office Management
    Review, and the Administration's certiorari petition in In re
    Grand Jury Subpoena Duces Tecum, 
    112 F.3d 910
     (8th Cir.),
    cert. denied, 
    117 S. Ct. 2482
     (1997), indicating that White
    House lawyers comply with the spirit of section 535(b).  Maj.
    Op. at 19-20.  Nothing in those statements suggests, howev-
    er, that their authors were referring to conversations between
    White House counsel and the President of the United States,
    i.e., that one presidential subordinate (White House counsel)
    would report a confidential conversation with a President to
    another presidential subordinate (the Attorney General).
    The court points to no other statutory basis for denying the
    President the benefit of the official privilege.  Although the
    Independent Counsel statute ensures independent, aggressive
    prosecution of wrongdoing, nothing in that statute disables a
    President from defending himself or otherwise indicates that
    Congress intended to deprive the Presidency of its official
    privileges.
    The court refers to actions of a few previous White House
    counsel:  Fred Buzhardt testified voluntarily before the Wa-
    tergate grand jury;  Peter Wallison turned over his diaries to
    the Iran-Contra investigation;  and C. Boyden Gray and his
    deputy refused to be interviewed by that same Iran-Contra
    Independent Counsel.  See Maj. Op. at 20-21.  In my view,
    these limited and contradictory examples reveal nothing
    about the standard we should apply where, as here, a Presi-
    dent of the United States actually invokes the attorney-client
    privilege in the face of a grand jury subpoena.
    Acknowledging the facial inapplicability of section 535(b) to
    the Office of the President, the court relies on the govern-
    ment lawyer's oath of office for the proposition that White
    House counsel cannot have a traditional attorney-client rela-
    tionship with the President.  But all lawyers, whether they
    work within the government or the private sector, take an
    oath to uphold the Constitution of the United States.  In
    order to practice before this court, for example, attorneys
    must promise to "demean [themselves] ... according to law
    ... [and] support the Constitution of the United States."
    Application for Admission to Practice (U.S. Court of Appeals
    for the D.C. Circuit).  No one would suggest that this oath
    abrogates a client's privilege in the face of a grand jury
    subpoena.
    This court's opinion, moreover, nowhere accounts for the
    unique nature of the Presidency, its unique need for confiden-
    tial legal advice, or the possible consequences of abrogating
    the attorney-client privilege for a President's ability to obtain
    such advice.  Elected, head of the Executive Branch,
    Commander-in-Chief, head of State, and removable only by
    impeachment, the President is not just "a part of the federal
    government, consisting of government employees doing gov-
    ernment business."  Maj. Op. at 2.  As Justice Robert H.
    Jackson observed in the steel seizure case, the Presidency
    concentrates executive authority "in a single head in whose
    choice the whole Nation has a part, making him the focus of
    public hopes and expectations.  In drama, magnitude and
    finality his decisions so far overshadow any others that almost
    alone he fills the public eye and ear."  Youngstown Sheet &
    Tube Co. v. Sawyer, 
    343 U.S. 579
    , 653 (1952) (Jackson, J.,
    concurring).  Echoing Justice Jackson three decades later,
    the Supreme Court emphasized in Nixon v. Fitzgerald, 
    457 U.S. 731
     (1982), that the President "occupies a unique position
    in the constitutional scheme," 
    id. at 749
    , that we depend on
    the President for the "most sensitive and far-reaching deci-
    sions entrusted to any official under our constitutional sys-
    tem," 
    id. at 752
    , and that the President's "unique status
    under the Constitution" distinguishes him from other execu-
    tive branch officials, 
    id. at 750
    .  The Attorney General,
    focusing on the President's "singular responsibilities," de-
    scribes the Presidency's critical need for legal advice as
    follows:
    The Constitution vests the President with unique, and
    uniquely consequential, powers and responsibilities.  The
    Nation's "executive Power" is vested in him alone.  U.S.
    Const. Art. II, s 1.  In addition to his significant and
    diverse domestic and foreign affairs responsibilities, he is
    specifically required to adhere to and follow the law, both
    in his oath of office (Art. II, s 1, Cl. 8) and in the
    requirement that "he shall take Care that the Laws be
    faithfully executed."  Art. II, s 3.  To fulfill his manifold
    duties and functions, the President must have access to
    legal advice that is frank, fully informed, and confiden-
    tial.  Because of the magnitude of the Nation's interest
    in facilitating the President's conduct of his office in
    accordance with law, the President's pressing need for
    effective legal advice knows no parallel in government.
    Amicus Br. at 24.  By lumping the President together with
    tax collectors, passport application processors, and all other
    executive branch employees--even cabinet officers--the court
    bypasses the reasoned "case-by-case" analysis demanded by
    Rule 501, Jaffee, 
    518 U.S. at 8
     (quoting S. Rep. No. 93-1277,
    at 13 (1974)).
    A President's need for confidential legal advice may
    "know[ ] no parallel in government" for another reason.  Be-
    cause the Presidency is tied so tightly to the persona of its
    occupant, and because of what Fitzgerald referred to as the
    Presidency's increased "vulnerability," stemming from "the
    visibility of [the] office and the effect of [the President's]
    actions on countless people," Fitzgerald, 
    457 U.S. at 753
    ,
    official matters--proper subjects for White House counsel
    consultation--often have personal implications for a Presi-
    dent.  Since for any President the line between official and
    personal can be both elusive and difficult to discern, I think
    Presidents need their official attorney-client privilege to per-
    mit frank discussion not only of innocuous, routine issues, but
    also sensitive, embarrassing, or even potentially criminal top-
    ics.
    The need for the official presidential attorney-client privi-
    lege seems particularly strong after Watergate which, while
    ushering in a new era of accountability and openness in the
    highest echelons of government, also increased the Presiden-
    cy's vulnerability.  Aggressive press and congressional scruti-
    ny, the personalization of politics, and the enactment of the
    Independent Counsel statute, Pub. L. No. 95-521, Tit. VI, 
    92 Stat. 1824
    , 1867 (1978) (codified as amended at 28 U.S.C.
    ss 591-599 (1994))--which triggers appointment of an Inde-
    pendent Counsel based on no more than the existence of
    "reasonable grounds to believe that further investigation is
    warranted," 28 U.S.C. s 592(c)(1)(A)--have combined to
    make the Supreme Court's fear that Presidents have become
    easy "target[s]," Fitzgerald, 
    457 U.S. at 753
    , truer than ever.
    No President can navigate the treacherous waters of post-
    Watergate government, make controversial official legal deci-
    sions, decide whether to invoke official privileges, or even
    know when he might need private counsel, without confiden-
    tial legal advice.  Because of the Presidency's enormous
    responsibilities, moreover, the nation has compelling reasons
    to ensure that Presidents are well defended against false or
    frivolous accusations that could interfere with their duties.
    The nation has equally compelling reasons for ensuring that
    Presidents are well advised on whether charges are serious
    enough to warrant private counsel.  I doubt that White
    House counsel can perform any of these functions without the
    candor made possible by the attorney-client privilege.  As I
    said at the outset, weakening the privilege may well cause
    Presidents to shift their trust from White House lawyers who
    have undertaken to serve the Presidency, to private lawyers
    who have not.
    Preserving the official presidential attorney-client privilege
    would not place the President above the law, as the Indepen-
    dent Counsel implies.  To begin with, by enabling clients--
    including Presidents--to be candid with their lawyers and
    lawyers to advise clients confidentially, the attorney-client
    privilege promotes compliance with the law.  See Upjohn, 
    449 U.S. at 389
    .  Independent Counsels, moreover, have powerful
    weapons to combat abuses of the attorney-client privilege.  If
    evidence suggested that a President used White House coun-
    sel to further a crime, the crime-fraud exception would abro-
    gate the privilege.  See United States v. Zolin, 
    491 U.S. 554
    ,
    562-63 (1989).  If an Independent Counsel had evidence that
    White House counsel's status as an attorney was used to
    protect non-legal materials from disclosure, those materials
    would not be protected.  See State v. Philip Morris Inc., No.
    C1-94-8565, 
    1998 WL 257214
    , at *7 (Minn. Dist. Ct. Mar. 7,
    1998) (releasing documents as penalty for bad faith claim of
    privilege).  "The privilege takes flight," Justice Benjamin
    Cardozo said, "if the [attorney-client] relation is abused."
    Clark v. United States, 
    289 U.S. 1
    , 15 (1933).  Or if an
    Independent Counsel presented evidence that a White House
    counsel committed a crime, a grand jury could indict that
    lawyer.  See George Lardner, Jr., Dean Guilty in Cover-Up:
    Nixon Ex-Aide Pleads to Count of Conspiracy, Wash. Post,
    Oct. 20, 1973, at A1.  This Independent Counsel has never
    alleged that any of these abuses occurred.
    To be sure, a properly exercised attorney-client privilege
    may deny a grand jury access to information, see Swidler,
    
    1998 WL 333019
    , at *6 (justifying the burden placed on the
    truth-seeking function by the privilege), but Presidents re-
    main accountable in other ways, see Fitzgerald, 
    457 U.S. at 757
     (checks on Presidential action include impeachment, press
    scrutiny, congressional oversight, need to maintain prestige,
    and concern for historical stature).  An Independent Counsel,
    moreover, can always report to Congress that a President has
    denied critical information to a grand jury.  See 28 U.S.C.
    s 595(a)(2), (c).  If the President continues to exercise his
    attorney-client privilege in the face of a congressional subpoe-
    na, and if Congress believes that the President has committed
    "high Crimes and Misdemeanors," U.S. Const. art. II, s 4,
    Congress can always consider impeachment.  See H. Rep. No.
    93-1305, at 4, 187-213 (1974) (recommending impeachment of
    President Nixon based on his refusal to turn over information
    in response to congressional subpoenas).
    II
    During Lindsey's several grand jury appearances he in-
    voked both executive and attorney-client privileges, often with
    respect to the same questions.  Now that the White House
    has dropped the executive privilege issue, much of that
    information may be available to the Independent Counsel and
    we have no way of knowing which questions, if any, Lindsey
    would continue to decline to answer.  Even more fundamen-
    tal, Lindsey's affidavit, [[  ]] and the affidavit of White
    House Counsel Charles F.C. Ruff suggest that the communi-
    cations between Lindsey and the President regarding the
    Monica Lewinsky and Paula Jones matters may have involved
    political and policy discussions, not legal advice.  To be sure,
    the affidavits [[       ]] refer to advice about legal
    topics, such as invoking privileges and preparing for impeach-
    ment.  But nowhere do they demonstrate that Lindsey ren-
    dered that advice in his capacity as a lawyer, i.e., that "the
    lawyer's professional skill and training would have value in
    the matter."  Restatement s 122 cmt. b.  A conversation is
    not privileged merely because the President asked Lindsey a
    question about a nominally legal matter or in his capacity as
    White House Counsel staff.  For example, if Lindsey advised
    the President about the political implications of invoking
    executive privilege, that communication would not be privi-
    leged;  if he discussed the availability of the privilege as a
    legal matter, the conversation would be protected.
    Distinguishing between Lindsey's legal and non-legal ad-
    vice becomes even more difficult because not only does Lind-
    sey wear two hats, one legal (Deputy White House Counsel)
    and one non-legal (Special Assistant to the President), but the
    Office of White House Counsel has historically performed
    many non-legal functions, such as giving policy advice, writing
    speeches, and performing various political tasks.  See Ste-
    phen Hess, Organizing the Presidency 36, 43, 84 (1988);  Lloyd
    N. Cutler, The Role of the Counsel to the President of the
    United States, 35 Record of the Association of the Bar of the
    City of New York 470, 472-76 (1980);  Jeremy Rabkin, At the
    President's Side:  The Role of the White House Counsel in
    Constitutional Policy, Law & Contemp. Probs., Autumn 1993,
    at 63, 65-76.  When an advisor serves dual roles, the party
    invoking the privilege bears a particularly heavy burden of
    demonstrating that the services provided were in fact legal.
    See, e.g., Texaco Puerto Rico, Inc. v. Department of Consum-
    er Affairs, 
    60 F.3d 867
    , 884 (1st Cir. 1995) (where agency
    "delegated policymaking authority to its outside counsel to
    such an extent that counsel ceased to function as lawyers and
    began to function as regulators," it could not invoke attorney-
    client privilege);  Restatement s 122 cmt. c (whether privi-
    lege applies to lawyer acting in dual roles depends upon
    circumstances);  cf. In re Sealed Case, 121 F.3d at 752 (with
    respect to " 'dual hat' presidential advisors, the government
    bears the burden of proving that the communications" are
    covered by the executive privilege).
    Accordingly, before abrogating the official attorney-client
    privilege for all future Presidents, this court should have
    remanded to the district court to allow the Independent
    Counsel to recall Lindsey to the grand jury to determine
    whether, with respect to each question that he declines to
    answer, he can demonstrate the elements of the attorney-
    client privilege, namely that each communication was made
    between privileged persons in confidence "for the purpose of
    obtaining or providing legal assistance for the client," Re-
    statement s 118.  See United States v. Kovel, 
    296 F.2d 918
    ,
    923 (2nd Cir. 1961) (remanding to permit accountant witness
    to offer factual support for assertion that communications
    were made in pursuit of legal advice).  If Lindsey failed to
    meet this burden, that would end the matter, leaving for
    another day the difficult question of presidential attorney-
    client privilege, with its consequences for the functioning of
    the Presidency, as well as its potential implications for possi-
    ble impeachment proceedings (implications we have hardly
    begun to consider).  See Maj. Op. at 23-25;  Office of the
    President Br. at 26-29;  Office of the Independent Counsel
    Br. at 35;  cf. Amicus Br. at 34-37.  On the other hand, if
    Lindsey demonstrated that his communications involved offi-
    cial legal advice, the district court could use the remand to
    enrich the record by, for example, inviting former White
    House counsel to describe the nature of the relationship
    between Presidents and White House counsel generally and
    the role of the attorney-client privilege in particular.  This
    would create an infinitely more useful record for us, or
    eventually the Supreme Court, to determine whether reason
    or experience justifies any change in the official presidential
    attorney-client privilege, and if so, whether the privilege can
    be modified without threatening a President's ability to "take
    Care that the Laws be faithfully executed."  U.S. Const. art.
    II, s 3.  See Swidler, 
    1998 WL 333019
    , at *6 n.4 (noting lack
    of empirical evidence in support of limiting the privilege);
    Jaffee, 
    518 U.S. at
    16 & n.16 (relying on amicus briefs citing
    psychology and social work studies);  Trammel, 
    445 U.S. at 48, 52
     (relying on historical developments regarding the role
    of women in marriage).
    I do not consider the Supreme Court's expectation that we
    proceed expeditiously to be inconsistent with our obligation to
    engage in fully reasoned and informed decision-making.  The
    importance to the Presidency of effective legal advice re-
    quires no less.  Moreover, according to the Independent
    Counsel, the grand jury is exploring whether obstruction of
    justice, perjury, witness intimidation, and other crimes were
    committed in January 1998.  See 18 U.S.C. s 3282 (establish-
    ing five-year statute of limitations for non-capital federal
    crimes).  We thus have time to determine whether we need to
    resolve this important question and, if so, to ensure that we
    do so on the basis of a fuller, more useful record.  If the
    Independent Counsel needs to report to Congress more expe-
    ditiously, he is free to do so.
    III  [[
    ]]
    

Document Info

Docket Number: 98-3060, 98-3062 and 98-3072

Citation Numbers: 148 F.3d 1100, 331 U.S. App. D.C. 246

Judges: Per Curiam, Randolph, Rogers, Tatel

Filed Date: 7/31/1998

Precedential Status: Precedential

Modified Date: 8/3/2023

Authorities (39)

Texaco Puerto Rico, Inc. v. Department of Consumer Affairs , 60 F.3d 867 ( 1995 )

United States v. Louis Kovel , 296 F.2d 918 ( 1961 )

In Re Bieter Company , 16 F.3d 929 ( 1994 )

In Re Grand Jury Investigation. Appeal of United States of ... , 599 F.2d 1224 ( 1979 )

Federal Trade Commission v. Milton Shaffner , 626 F.2d 32 ( 1980 )

In Re Grand Jury Subpoena Duces Tecum , 112 F.3d 910 ( 1997 )

In re:Motions of Dow , 142 F.3d 496 ( 1998 )

William M. Brinton v. Department of State , 636 F.2d 600 ( 1980 )

Sean T. Haddon v. Gary J. Walters, Chief Usher , 43 F.3d 1488 ( 1995 )

National Security Archive v. Archivist of the United States , 909 F.2d 541 ( 1990 )

Mead Data Central, Inc. v. United States Department of the ... , 566 F.2d 242 ( 1977 )

In Re Sealed Case , 737 F.2d 94 ( 1984 )

Tax Analysts v. Internal Revenue Service , 117 F.3d 607 ( 1997 )

In Re Sealed Case , 676 F.2d 793 ( 1982 )

Sidney M. Wolfe, M.D. v. Department of Health & Human ... , 815 F.2d 1527 ( 1987 )

Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. ... , 5 F.3d 1508 ( 1993 )

gilda-marx-incorporated-body-design-by-gilda-inc-body-design-by-gilda , 85 F.3d 675 ( 1996 )

scott-armstrong-gary-m-stern-eddie-becker-national-security-archive-center , 1 F.3d 1274 ( 1993 )

Coastal States Gas Corporation v. Department of Energy , 617 F.2d 854 ( 1980 )

Securities & Exchange Commission v. Gulf & Western ... , 518 F. Supp. 675 ( 1981 )

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