Attorney General Janet Reno filed a brief June 1, 1997 in support of the president's request for Supreme Court review of an 8th Circuit ruling that communications between Hillary Rodham Clinton and government attorneys are not privileged.

 

No. 96-1783 
 
IN THE SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1996 
 
OFFICE OF THE PRESIDENT, PETITIONER 
 
v. 
 
OFFICE OF INDEPENDENT COUNSEL, ET AL. 
 
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT 
OF APPEALS 
FOR THE EIGHTH CIRCUIT 
 
BRIEF AMICUS CURIAE FOR THE UNITED STATES, ACTING THROUGH THE 
ATTORNEY 
GENERAL, SUPPORTING CERTIORARI 
 
SETH P. WAXMAN 
Acting Solicitor General 
 
FRANK W. HUNGER 
Assistant Attorney General 
 
JOHN C. KEENEY 
Acting Assistant Attorney General 
 
EDWIN S. KNEEDLER 
MICHAEL R. DREEBEN 
Deputy Solicitors General 
 
JAMES A. FELDMAN 
Assistant to the Solicitor General 
 
Department of Justice 
Washington. D.C. 20530-0001 
(202) 514-2217 
 
QUESTIONS PRESENTED 
 
1. Whether the Office of the President may decline to produce documents 
sought by a federal grand jury subpoena on the ground that the documents 
are protected by an attorney-client privilege. 
 
2. Whether the Office of the President may decline to produce documents 
sought by a federal grand jury subpoena on the ground that they are 
protected by the work product doctrine because they were prepared by its 
attorneys in connection with grand jury proceedings and legislative 
proceedings. 
 
IN THE SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1996 
 
No. 96-1783 
 
OFFICE OF THE PRESIDENT, PETITIONER 
 
v. 
 
OFFICE OF INDEPENDENT COUNSEL, ET AL. 
 
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT 
OF APPEALS 
FOR THE EIGHTH CIRCUIT 
 
BRIEF AMICUS CURIAE FOR THE UNITED STATES, ACTING THROUGH THE 
ATTORNEY 
GENERAL, SUPPORTING CERTIORARI 
 
INTEREST OF THE UNITED STATES 
 
Petitioner and respondent represent discrete interests of the United States 
in this specific litigation. The issues presented, however, implicate 
fundamental concerns of the United States that extend far beyond the 
particular circumstances of this case. Thus, although special counsel have 
been appointed by the Department of Justice to represent the Office of the 
President in this case, the United States has a broad and substantial 
interest in the ability of the President and Executive Branch agencies 
generally to obtain frank, fully informed, and confidential legal advice. 
And although the Independent Counsel has the "authority to exercise all 
investigative and prosecutorial functions and powers of the Department of 
Justice" with respect to matters within his jurisdiction, 28 U.S.C. 594(a), 
the Attorney General is otherwise responsible for federal criminal 
prosecutions. See 28 U.S.C. 597(b) (authorizing Attorney General and 
Solicitor General to participate as amicus curiae in independent counsel 
cases). 
 
The unique nature of this case led the Attorney General to conclude at the 
time this dispute arose that the White House should be represented by 
specially appointed counsel, who would be in a position to review the 
attorney notes subpoenaed by the Independent Counsel and respond to the 
motion to compel on that basis./1 The Attorney General reserved, however, 
the right to file a brief addressing legal issues of broader interest to 
the United States in appropriate circumstances. The opinion of the court of 
appeals now presents those circumstances./2 
 
STATEMENT 
 
a. On July 11, 1995, First Lady Hillary Rodham Clinton met with David 
Kendall, an attorney representing both the President and Mrs. Clinton in 
their personal capacities, at the White House Residence for the purpose of 
obtaining legal advice. Late in the meeting, two attorneys from the White 
House Counsel's Office, Jane Sherburne and Miriam Nemetz, joined them. Ms. 
Nemetz took some notes during the meeting. The subject of that part of the 
meeting was Mrs. Clinton's activities in the period immediately following 
the suicide of White House Deputy Counsel Vincent Foster in 1993. At the 
time of the meeting, investigations relating to what has become known as 
"Whitewater," including the handling of documents in the aftermath of the 
Foster suicide, were being conducted by the Independent Counsel, the Senate 
Whitewater Committee, the House Banking and Government Reform Committees, 
the Federal Deposit Insurance Corporation, and the Resolution Trust 
Corporation. The Independent Counsel had scheduled a deposition of Mrs. 
Clinton regarding the Foster document matter for July 22, 1995. Pet. App. 
88a-89a, 94a. 
 
b. Early in January 1996, a White House employee found in the White House 
Residence a copy of billing records relating to work performed by members 
of the Rose Law Firm, including Mrs. Clinton. Those records were responsive 
to a May 1994 grand jury subpoena to Mrs. Clinton. On January 19, 1996, the 
Independent Counsel issued a subpoena for Mrs. Clinton to testify before a 
Washington, D.C., grand jury regarding the discovery of the billing 
records. Other investigations regarding the discovery of the records were 
being undertaken by the Senate Whitewater Committee and other federal 
agencies. Mrs. Clinton testified before the grand jury on January 26, 1996. 
During breaks in her testimony, Mrs. Clinton met in a private room in the 
courthouse with Kendall, his partner Nicole Seligman, White House Counsel 
John Quinn, and Sherburne. After the testimony was completed, Mrs. Clinton 
met at the White House Residence with Sherburne, Kendall, and Seligman. 
Sherburne took notes during those meetings. Pet. App. 66a n.3, 89a-9Oa, 
94a. 
 
2. On June 21, 1996, on the application of the Independent Counsel, a grand 
jury in the Eastern District of Arkansas issued a subpoena to "The White 
House c/o Jane Sherburne, Special Counsel to the President." The subpoena 
sought, inter alia (IC C.A. App. 23) 
 
All documents created during any meeting attended by any attorney from the 
Office of the Counsel to the President and Hillary Rodham Clinton 
(regardless whether any other person was present), between July 20, 1993, 
and the present, which relate in any way to the death of Vincent W. Foster, 
Jr., documents in the office of Vincent W. Foster, Jr., at the time of his 
death, or events between July 20 and July 27, 1993. 
 
The White House Counsel identified nine sets of notes that were responsive 
to the subpoena, but refused to produce them on the ground of 
attorney-client privilege and the work product doctrine. The Independent 
Counsel then moved to compel production, but only of the Nemetz notes of 
the July 11, 1995, meeting, and the Sherburne notes of the January 26, 
1996, meetings. Pet. App. 2a-3a. 
 
3. On November 26, 1996, the district court denied the Independent 
Counsel's motion to compel production. Pet. App. 62a-83a. The court 
concluded that the law in this area is "uncertain," that "Mrs. Clinton, as 
the functional equivalent of an officer or employee of the White House, 
considered her communications with lawyers from the White House Counsel's 
Office and personal counsel, as did those lawyers, to be confidential and 
for the purpose of receiving legal advice," and that the attorney-client 
privilege should protect the conversations for that reason -- regardless of 
whether the privilege legally applies. Id. at 80a. The court also held that 
the notes are "work product of the type that is clearly protected from 
disclosure to the grand jury." Id. at 81a. 
 
4. a. A divided panel of the Eighth Circuit reversed. Pet. App. la-61a. The 
majority reasoned that the principal question in this case -- "whether an 
entity of the federal government may use the attorney-client privilege to 
avoid complying with a subpoena by a federal grand jury," Pet. App. 5a -- 
is governed by Rule 501 of the Federal Rules of Evidence. That Rule 
provides that n the privilege of a witness, person, government, State, or 
political subdivision thereof [is] 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." In the majority's view, United States v. 
Nixon, 418 U.S. 683 (1974), "is indicative of the general principle that 
the government's need for confidentiality may be subordinated to the needs 
of the government's own criminal justice processes. n Pet. App. 15a. In the 
context of attorney-client communications, the court held, the governmental 
interest in confidentiality can never overcome a grand jury subpoena. See 
id. at 17a-20a. 
 
The court rejected the argument that the governmental attorney-client 
privilege is supported by the same rationale -- and should have the same 
scope -- as the corporate attorney-client privilege recognized by this 
Court in Upjohn Co. v. United States, 449 U.S. 383 (1981). The court 
believed that White House lawyers require confidentiality less than their 
corporate counterparts because "the actions of White House personnel, 
whatever their capacity, cannot expose the White House as an entity to 
criminal liability, n and the White House therefore does not have a 
compelling interest in ferreting out misconduct by its employees. Pet. App. 
17a. In addition, the court found it "significant that executive branch 
employees, including attorneys, are under a statutory duty to report 
criminal wrongdoing by other employees to the Attorney General" pursuant to 
28 U.S.C. 535(b). Ibid. Finally, drawing an analogy between the 
responsibilities of government lawyers and the responsibilities of auditors 
to "maintain total independence from the client at all times" and to assume 
"public obligations" as a "public watchdog," Pet. App. 17a-18a (quoting 
United States v. Arthur Young & Co., 465 U.S. 805, 817-818 (1984)), the 
court concluded that the "strong public interest in honest government and 
in exposing wrongdoing by public officials would be ill-served by 
recognition of a governmental attorney-client privilege applicable in 
criminal proceedings inquiring into the actions of public officials," id. 
at 18a. /3 
 
The court also rejected application of the work product doctrine, because 
it believed that White House Counsel was not "preparing for or anticipating 
some sort of adversarial proceeding involving his or her client." Pet. App. 
25a-26a. It found "unpersuasive" the White House's position that its 
lawyers were preparing for the Independent Counsel's investigation, because 
the "OIC is not investigating the White House, nor could it do so." Id. at 
26a. Nor, in the court's view, did congressional investigations trigger the 
work product doctrine, because they were directed not at the White House, 
but at individuals, and could result only in "political" -- not legal -- 
harm. Id. at 26a-27a. 
 
b. District Judge Kopf dissented. Pet. App. 29a-61a. He believed that 
recognition of the attorney-client privilege in this setting falls squarely 
within proposed Federal Rule of Evidence 503, as well as other 
authoritative sources. See Pet. App. 33a-38a. In his view, the fact that 
this is a criminal proceeding has no bearing on the application vel non of 
the attorney-client privilege, i. at 36a, and the public interest favors 
recognition of a privilege so that governmental entities may obtain legal 
advice about how to obey the law, id. at 37a-44a. Judge Kopf concluded, 
however, that although the ordinary prerequisites of the privilege were 
satisfied, see id. at 44a-49a, it generally can be invaded in the unique 
setting of a subpoena issued in connection with an independent counsel 
investigation on a showing of need and with appropriate procedural 
protections, id. at 51a-55a. In this case, Judge Kopf reasoned that 
producing the notes would unjustifiably invade Mrs. Clinton's personal 
attorney-client privilege, because both she and the White House Counsel 
reasonably expected the communications to be confidential. Id. at 59a-61a. 
 
DISCUSSION 
 
The United States is ordinarily entitled to the same attorney-client 
privilege that is available to private individuals and corporations. This 
case, however, does not arise from the ordinary situation in which the 
privilege is asserted by its holder against an outside entity. This case 
involves claims to information by prosecutorial interests of the United 
States represented by the Independent Counsel, on the one hand, and 
assertion of the attorney-client privilege for the same information by the 
Office of the President, on the other. The grand jury, working in 
conjunction with the Independent Counsel, has issued a subpoena and, 
through the Independent Counsel, has sought judicial enforcement of it. The 
primary position of the Office of the President is that the attorney-client 
privilege is absolute and therefore necessarily prevails against the grand 
jury subpoena. The position of the Independent Counsel and the court of 
appeals, by contrast, is that there is no attorney-client privilege in this 
setting and that the grand jury subpoena therefore necessarily prevails. 
 
We see the matter from a different perspective. A purely intra-Executive 
Branch disagreement over the availability and use in court of information 
held by a federal agency would typically be resolved within the Executive 
Branch based on consideration of the various interests of the United States 
as a whole. In that setting, the Attorney General, who is charged with 
conducting litigation on behalf of the United States and its agencies, is 
in a position to reconcile all litigation and non-litigation interests and 
to speak for the single client (the United States) in all of its aspects -- 
to assert or waive in litigation privileges that might otherwise be 
absolute as against parties outside the Executive Branch. Although in 
criminal cases the government's investigative and prosecutorial interests 
have great weight, there may be cases in which those interests are 
attenuated or are outweighed by the need for confidentiality. 
 
Because this case involves a grand jury subpoena issued at the behest of an 
independent counsel -- who is vested with responsibility for only one 
discrete interest of the United States and who does not operate under the 
direct supervision of the President or the Attorney General -- there is no 
opportunity for the weighing of all relevant interests of the United States 
within the Executive Branch. That task thus necessarily falls to the 
district court in ruling on the Independent Counsel's motion to enforce the 
grand jury subpoena. In applying the law of privileges under Rule 501 in 
that setting, the President's interest in confidentiality supports 
application of the attorney-client privilege. The demands of criminal law 
enforcement, however, may require in a particular instance that the 
privilege give way. Cf. United States v. Nixon, 418 U.S. 683 (1974). 
 
In holding that the privilege automatically gives way in response to an 
otherwise valid grand jury subpoena, the court of appeals' decision lays 
open the White House Counsel (and by extension federal agency counsel) to 
an ever-present potential for unrestrained intrusion into their ongoing 
attorney-client communications. That result would impair the ability of the 
President (and the heads of federal agencies) to obtain frank, fully 
informed, and confidential legal advice. The same is true of the court of 
appeals' categorical refusal to afford any protection through the work 
product doctrine. In light of the court of appeals' legal errors and the 
resulting practical consequences, review by this Court is warranted. 
 
1. The attorney-client privilege "functions to protect communications 
between government attorneys and client agencies or departments * * * much 
as it operates to protect attorney-client communications in the private 
sector." Memorandum for the Attorney General re: Confidentiality of the 
Attorney General's Communications in Counseling the President, 6 Op. O.L.C. 
481, 495 (1982) (1982 OLC Opinion). /4 The rationale for the governmental 
privilege is much the same as that for the corporate privilege recognized 
in Upjohn Co. v. United States, 449 U.S. 383 (1981). To paraphrase the 
Court's reasoning in Upjohn: 
 
In light of the vast and complicated array of regulatory legislation 
confronting [federal agencies], [agencies], like most individuals, 
constantly go to lawyers to find out how to obey the law, particularly 
since compliance with the law in this area is hardly an instinctive matter. 
Id. at 392 (citations and internal quotation marks omitted). The purpose of 
the privilege in the governmental context, as in the private context, is 
"to encourage full and frank communication between attorneys and their 
clients and thereby promote broader public interests in the observance of 
law and administration of justice." Id. at 389. 
 
All of the authoritative sources agree with that proposition -- and none 
recognizes any categorical exception to the privilege in criminal 
proceedings. The proposed Federal Rules of Evidence, whose status as a 
solid indication of the scope of the "common law" of privilege under Rule 
501 has frequently been recognized, see, e.g., United States v. Gillock, 
445 U.S. 360, 367-368 (1980), included a rule regarding the attorney-client 
privilege. That rule defined "client" to include "a person, public officer, 
or corporation, association, or other organization or entity, either public 
or private." 56 F.R.D. 183, 235 (1972) (emphasis added). Similarly, the 
Restatement (Third) of the Law Governing Lawyers Section 124 (Proposed 
Final Draft No. 1, approved May 28, 1996) (Restatement), states that "[t]he 
attorney-client privilege extends to a communication of a governmental 
organization," and Uniform Rule of Evidence 502(a)(1) defines "client" to 
include governmental bodies. /5 The attorney-client privilege of federal 
agencies in particular (along with the work product doctrine) has been 
recognized and affirmed under the Freedom of Information Act. /6 
 
The court of appeals' rejection of any attorney-client privilege in this 
setting rested on two fundamentally erroneous propositions: (1) that the 
White House is less in need of confidential legal advice than a corporation 
because the White House as an entity has no exposure to legal liability and 
has no compelling interest in conducting investigations to ferret out 
misconduct by its employees, Pet. App. 17a; and (2) that White House 
Counsel and other government attorneys are properly analogized to outside 
auditors who serve as "public watchdogs" and must "maintain total 
independence from the client at all times," id. at 17a-18a. 
 
Contrary to the court of appeals' view, attorneys in the government, like 
their counterparts elsewhere, have duties of loyalty and confidentiality to 
their client (see ABA Standing Committee on Ethics and Professional 
Responsibility, Formal Opinion 97-405 (Apr. 19, 1997), slip op. 4-5; 
Restatement Section 156 cmt. d), and a governmental client plainly does 
have a compelling interest in investigating allegations of wrongdoing by 
its employees. Moreover, the need of the President and other Executive 
Branch officials to obtain frank, fully informed, and confidential legal 
advice so that they may conform their conduct to the law is at least as 
great as that of non-governmental clients. Thus, where a governmental 
attorney-client communication satisfies the ordinary prerequisites of the 
privilege, the communication is privileged from disclosure to outsiders to 
the same extent -- and for the same reasons -- as a corporate 
attorney-client communication would be. 
 
2. a. The fact that the federal government enjoys an absolute 
attorney-client privilege as against outside parties does not, however, 
resolve this case. It is necessary to consider as well how decisions are 
made within the Executive Branch whether to assert or waive privileges in 
litigation, including in grand jury investigations. If an agency possesses 
information protected by the attorney-client privilege, no abrogation or 
waiver of that 
 
privilege would result from furnishing the information to the Attorney 
General, who represents the interests of the United States as a whole, 
including its constituent agencies. See 28 U.S.C. 511, 512, 516, 533, 547. 
The only question at that stage would be whether the need for the 
information outweighs any adverse impact on the effective provision of 
legal advice to the agency possessing the information that might result 
from the intra-Branch disclosure. /7 If information is obtained by the 
Attorney General, a further question may later arise about whether to use 
the information in criminal or civil litigation. Although the Attorney 
General's weighing of the relevant interests informing that decision would 
ordinarily occur in consultation with the agency involved, the agency 
could, if necessary, present any irreconcilable differences to the 
President. /8 
 
Where the Attorney General seeks information directly relating to the 
commission of a federal crime, the Justice Department's experience 
indicates that it would be rare for the Attorney General to strike the 
balance against obtaining it, given the compelling federal interest in 
investigation and prosecution of federal crimes. /9 The Attorney General 
may obtain or review the information with the understanding that there 
would be further consultation with the agency concerned before the material 
would be used in a manner that would abrogate the attorney-client (or 
other) privilege. After obtaining the information, there may often be 
situations in which the Attorney General, after again weighing the relevant 
considerations, would in turn choose to submit evidence protected by the 
governmental attorney-client privilege to a grand jury, or to introduce it 
into evidence at trial. /10 But there may also be situations in which the 
potential chilling of the effective provision of legal advice to the agency 
concerned would outweigh the prosecution's need to use particular 
information -- e.g., where the information bore less directly on the 
investigation or trial, or where the information sought reflects, not the 
historical matters under investigation, but rather the agency's 
consideration of the request for information itself. What is significant is 
that, in the ordinary case, the Attorney General, in consultation with 
other Executive Branch officials and subject to the ultimate authority of 
the President, would weigh all of the relevant interests of the single 
client, the United States. 
 
b. When a grand jury, at the behest of an independent counsel, seeks 
information from an Executive Branch agency, the balancing process 
described above cannot fully function. Neither the President nor any other 
Executive Branch official is in a position to determine the extent of the 
independent counsel's need for the information. Those officials cannot 
realistically require the independent counsel to reveal the precise status 
of his investigation, and the very purpose of the independent counsel 
statute is to preclude Executive Branch officials from exercising 
operational control over the independent counsel's investigation. By the 
same token, the independent counsel, who exercises only the ''investigative 
and prosecutorial functions and powers of the Department of Justice and the 
Attorney General" in a particular defined matter, 28 U.S.C. 594(a), has no 
institutional competence or authority to balance the prosecutorial need for 
the information against the potential threat to the ability of the 
President or other high official effectively to obtain legal advice. /1l In 
short, no single official is in a position to weigh all relevant 
considerations and speak for the United States as a whole in this 
situation. 
 
Under these circumstances, a district court, in ruling on an independent 
counsel's motion to compel production, must resolve the dispute over the 
availability and use of the information. In so doing, a district court 
should be mindful that the governmental attorney-client privilege is 
absolute as against outside parties; the court should be mindful as well of 
the respective statutory interests and roles of the agency concerned, the 
Attorney General, and the independent counsel, and the constitutional 
office and responsibilities of the President. /12 Those considerations are 
fully accommodated by Rule 501 of the Federal Rules of Evidence, which 
states that "[e]xcept as otherwise required by the Constitution of the 
United States or provided by Act of Congress * * * , the privilege of a * * 
* government * * * 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." 
 
We submit that against the backdrop of the governing constitutional and 
statutory framework, "reason and experience" suggest that the district 
court should, in ruling on the motion to compel, accommodate the competing 
interests at stake in a manner similar to the accommodation that takes 
place in an ordinary, non-independent-counsel context. /13 Such an approach 
would not unsettle the legitimate expectations of agency officials and 
counsel, because it would resemble the treatment within the Executive 
Branch of confidential communications potentially relevant to a criminal 
investigation or trial. Nor would this approach hamper the investigation 
and prosecution of crimes, since enforcement activities outside the 
independent counsel setting would be governed by similar considerations. 
 
Neither court below attempted the accommodation of interests that we 
believe is required, and at this stage we therefore do not address what the 
precise standard of review should be. A useful analogy, however, can be 
drawn to the resolution of assertions of executive privilege. See Nixon v. 
Administrator of General Services, 433 U.S. 425, 447 (1977) (United States 
v. Nixon held that "in the case of the general privilege of confidentiality 
of Presidential communications, its importance must be balanced against the 
inroads of the privilege upon the effective functioning of the Judicial 
Branch"). 
 
In this respect, the court of appeals erred in stating that the Nixon test 
would not be satisfied unless the subpoenaed party could show "that there 
is no reasonable possibility that the category of materials the Government 
seeks will produce information relevant to the general subject of the grand 
jury's investigation." Pet. App. 13a n.9 (quoting United States v. R 
Enterprises. Inc., 498 U.S. 292, 301 (1991)); cf. United States v. North, 
910 F.2d 843, 952 (D.C. Cir. 1990) (Silberman, J., concurring in part and 
dissenting in part). That is the standard that any grand jury subpoena must 
satisfy, even when no privilege is claimed. That standard therefore is 
inconsistent with this Court's direction that a district court must "treat 
the subpoenaed material [for which executive privilege is asserted] as 
presumptively privileged," United States v. Nixon, 418 U.S. at 713, and 
must require, as a prerequisite to disclosure, that the prosecutor 
demonstrate that the subpoenaed material is "essential to the justice of 
the [pending criminal] case, " ibid. (quoting United States v. Burr, 25 F. 
Cas. 190, 192 (C.C. Va. 1807) (Marshall, J.)). See also United States v. 
Nixon, 418 U.S. at 713 ("privilege must yield to the demonstrated, specific 
need for evidence"); Nixon v. Sirica, 487 F.2d 700, 717-719 (D.C. Cir. 
1973) (en bane; per curiam) (applying need standard in grand jury setting 
to claim of executive privilege). As in other settings, a district court 
may have to receive information from the parties ex parse and review the 
materials in camera in order to determine whether disclosure should be 
ordered. /14 
 
c. Respondent argues (Br. in Opp. 11-16) that 28 U.S.C. 535(b) is 
inconsistent with the assertion of a privilege in the context of this case. 
Section 535(b) 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" must be 
reported to the Attorney General, subject to certain exceptions. It was 
enacted to settle a dispute within the government by providing that the 
Department of Justice has general responsibility to investigate possible 
criminal wrongdoing, regardless of where in the government such wrongdoing 
comes to light. See H.R. Rep. No. 2622, 83d Cong., 2d Sess. 1, 2 (1954). 
 
It is uncertain whether Section 535(b) applies of its own force to the 
Office of the President, compare Franklin v. Massachusetts, 505 U.S. 788, 
800-801 (1992) (President not an "agency" for purposes of Administrative 
Procedure Act), and that Section (which applies only to violations of Title 
18 and only those by federal employees) does not in any event cover the 
full range of situations in which a federal agency may come into possession 
of evidence of a federal crime. We assume, however, that the President (and 
other executive officials) would nevertheless recognize an equivalent duty 
to report to the Attorney General information received by the White House 
(or a federal agency) concerning federal criminal violations. Any such 
reporting could have no effect on the ability of the government to assert 
an attorney-client privilege, however, since the officer to whom the 
information must be reported -- the Attorney General -- is herself the 
lawyer for the Executive Branch. Indeed, it is the Attorney General who 
ordinarily is responsible for deciding (after weighing the relevant 
considerations) whether to assert or waive the governmental attorney-client 
privilege in litigation. Thus, a duty to report information concerning 
criminal violations to the Attorney General is entirely consistent with the 
approach we propose. 
 
3. The work product doctrine also provides qualified protection in the 
context of this case. See United States v. Nobles, 422 U.S. 225, 239 (1975) 
(work product doctrine applicable in criminal cases); Hickman v. Taylor, 
329 U.S. 495 (1947); United States v. Davis, 636 F.2d 1028, 1039 n.10 (5th 
Cir. 1981) ("[I]t is uniformly held that the work product doctrine applies 
to grand jury proceedings. N) (collecting cases). The court of appeals 
rejected that conclusion only because it believed that the materials at 
issue were not prepared "in anticipation of litigation." See Pet. App. 
25a-26a. That view is mistaken. 
 
Where the subpoenaed governmental entity has a legitimate interest in 
evaluating the assertion of applicable privileges in response to the 
subpoena, with the resultant potential for litigation, the attorney's work 
product may have been created "in anticipation of litigation" and thus be 
within the scope of the work product doctrine. In this case, one of Ms. 
Sherburne's roles at the time of the grand jury investigation was to 
"advise[] and assist[] the Office of the President in determining whether 
any privileges or other confidentiality interests should be asserted with 
regard to any of the information requested" and to "negotiate[] with the 
[Independent Counsel] * * * to accommodate interests in privileged 
material. n Pet. App. 85a-86a. 
 
In addition, the White House has represented that the notes at issue here 
were prepared, at least in part, in order to "facilitate[] advice to the 
Office of the President regarding responses to congressional inquiries." 
Pet. App. 90a; accord Pet. App. 88a. The work product doctrine applies when 
a congressional committee is investigating matters within the Executive 
Branch, because the agency has a strong interest in assuring that the work 
of its counsel in assisting agency officials to respond to the 
investigation will not be subject to mandatory disclosure -- either to the 
committee or to third parties in subsequent litigation. See Restatement 
Section 136 cmt. h (litigation "includes a proceeding such as * * * an 
investigative legislative hearing"). The Attorney General and the Office of 
Legal Counsel have consistently taken the position that work product (like 
attorney-client communication) is protected in this setting. See Letter 
from the Attorney General to the President (May 23, 1996), at 2 (citing 
Response to Congressional Requests for Information Regarding Decisions Made 
Under Independent Counsel Statute, 10 Op. O.L.C. 68, 78 & n.17 (1986); 1982 
OLC Opinion, 6 Op. O.L.C. at 490 n.17, 494 & n.24). /15 
 
4. For the foregoing reasons, the court of appeals erred in holding that 
neither the attorney-client privilege nor the work product doctrine 
provides any protection at all to the subpoenaed notes. Those holdings have 
sufficiently important consequences to warrant review by this Court. 
 
The court's holding unduly diminishes the ability of the President and 
other high-ranking Executive Branch officials to obtain legal advice and 
act accordingly regarding matters that have or that may come to have -- 
some relevance in an independent counsel investigation (and parallel 
congressional inquiries). The United States has compelling interests in 
investigating and prosecuting crimes -- inside or outside the government -- 
and the Justice Department's performance of those tasks is aided by the 
duty of the President and other government officials to report evidence of 
criminal violations to the Attorney General. At the same time, the 
Constitution requires the President to adhere to and follow the law, both 
in his oath of office (Art. II, Section 1, C1. 8), and in the requirement 
that "he shall take Care that the Laws be faithfully executed" (Art. II, 
Section 3). To fulfill those responsibilities, the President must have 
access to legal advice that is frank, fully informed, and confidential. 
 
The court of appeals' categorical holding will have the practical effect of 
diminishing the ability of the President and Executive Branch agencies to 
obtain such advice, for it denies any protection for attorney work product 
and attorney-client communications that may be swept within the broad ambit 
of a grand jury subpoena in this or a future independent counsel 
investigation. Because a grand jury "can investigate merely on suspicion 
that the law is being violated, or even just because it wants assurance 
that it is not," United States v. Morton Salt Co., 338 U.S. 632, 642-643 
(1950), the court of appeals' decision threatens to have a significant 
chilling effect for counsel and officials in the White House and federal 
agencies, who would be required to operate under an ever-present potential 
for unrestrained examination into and disclosure of their ongoing 
attorney-client communications. That consequence is not necessary for 
effective criminal law enforcement. Such an impairment of the President's 
ability to obtain confidential legal advice -- and to provide for the 
availability of legal advice for the Cabinet Officers on whom he relies in 
executing the laws -- should not be left unreviewed. 
 
CONCLUSION 
 
The petition for a writ of certiorari should be granted. 
 
Respectfully submitted. 
 
JUNE 1997 
 
SETH P. WAXMAN 
Acting Solicitor General 
 
FRANK W. HUNGER 
Assistant Attorney General 
 
JOHN C. KEENEY 
Acting Assistant Attorney General 
 
EDWIN S. KNEEDLER 
MICHAEL R. DREEBEN 
Deputy Solicitors General 
 
JAMES A. FELDMAN 
Assistant to the Solicitor General 
 
Acting Solicitor General Walter Dellinger has recused himself in this case. 
 
[Endnotes] 
 
/1 The Department of Justice has not reviewed the notes and is not aware of 
their contents. 
 
/2 The district court opinion, and all proceedings in both lower courts, 
were subject to a seal order, and prior to this stage we did not review 
them. 
 
/3 The court rejected the argument that the presence of Mrs. Clinton's 
private attorneys "affects the calculus in this case," Pet. App. 20a, 
finding no "common interest" sufficient to render the private and public 
representations jointly privileged, i. at 21a-23a. And the court rejected 
the district court's reasoning that Mrs. Clinton's subjective belief that a 
privilege attached to the conversations in question was sufficient by 
itself to warrant refusing to enforce the subpoena. Id. at 23a-25a. 
 
/4 See also id. at 483 ("[T]he Attorney General may assert the common-law 
privilege for attorney-client communications, which has been codified in 
Rule 501 of the Federal Rules of Evidence * * *, to protect from disclosure 
in litigation certain confidential communications of a legal advisory 
nature which were prepared for the Office of the President."). 
 
/5 Uniform Rule 502(d)(6) limits application of the privilege in the 
governmental context to situations involving a pending investigation or 
litigation and requires a finding by the court that disclosure will 
"seriously impair" the agency's pursuit of the investigation or litigation. 
As the court of appeals recognized (Pet. App. 8a n.5), many States that 
have adopted the Uniform Rules have omitted this qualification. 
 
/6 FOIA Exemption 5, 5 U.S.C. 552(b)(5), protects from disclosure materials 
that would normally be privileged from discovery in litigation with the 
agency. NLRB v. Sears. Roebuck & Co., 421 U.S. 132, 149 (1975). In Sears. 
Roebuck, this Court found it "clear that Congress had the attorney's work 
product privilege specifically in mind when it adopted Exemption 5 and that 
such a privilege had been recognized in the civil discovery context by the 
prior case law." Id. at 154. The lower courts have routinely held that 
Exemption 5 applies as well to attorney-client privileged materials. See, 
e.g., Mead Data Cent.. Inc. v. United States Dep't of Air Force, 566 F.2d 
242, 252-253 & n.20 (D.C. Cir. 1977); Pet. 18 n.5 (citing cases). 
 
/7 The same principles would apply within a private corporation with 
respect to information protected by the attorney-client privilege under 
Upjohn. No waiver of the privilege would result if counsel in one division 
of the corporation furnished the privileged information to counsel in 
another division, or to the general counsel of the corporation as a whole. 
Whether to share the information in that manner would be a matter of 
internal policy to be resolved by the responsible decision-makers within 
the corporation, taking into account the various interests of the 
corporation. 
 
/8 Both parties agree. See Pet. 20-21 n.6 ("any such intrabranch disputes 
would ordinarily * * * be resolved by consultation between agency heads or, 
if necessary, by the chief executive"); Br. in Opp. 25 (discussing 
"internal negotiation process within the Executive Branch"). 
 
/9 That understanding is consistent with the Independent Counsel's 
description of the facts of this case, in which the White House has 
produced "numerous sets of notes taken by White House attorneys in 
interviews of current and former White House employees." IC C.A. App. 18 
(Declaration of John D. Bates). 
 
/10 A similar balancing of interests takes place within the Executive 
Branch in deciding under the Classified Information Procedures Act, 18 
U.S.C. App. III, whether classified information will be used or disclosed 
in a criminal prosecution. 
 
/11 The independent counsel statute authorizes an independent counsel to 
"determin[e] whether to contest the assertion of any testimonial 
privilege," 28 U.S.C. 594(a)(5), but it does not authorize an independent 
counsel to decide whether a privilege will be asserted or waived by the 
United States in the first instance. 
 
/12 Our position is consistent with the Restatement, Section 124 cmt. b, 
which provides: 
 
More particularized rules may be necessary where one agency of government 
claims the privilege 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. 
 
/13 For example, if a government attorney learned that an official had 
destroyed subpoenaed documents or paid off a potential witness, see Br. in 
Opp. 20, the privilege should surely yield. In contrast, if a subpoena 
sought otherwise readily available factual material, which is embedded in a 
legal analysis provided by an attorney to an agency head, the privilege 
should ordinarily prevail. 
 
/14 Respondent argues (Br. in Opp. 24-25 & n.30) that "[t]his Court has 
consistently rebuffed efforts to require" the sort of accommodation 
approach we propose. It is true that the Court has rejected such an 
approach as an ordinary feature of the enforcement of grand jury subpoenas, 
in cases in which no privilege has been asserted. See R Enterprises, 498 
U.S. at 298. But such tests are routinely used in connection with certain 
types of privilege claims, most notably the work product doctrine. See, 
e.g., Hickman v. Taylor, 329 U.S. 495, 511-512 (1947) ("[A] burden rests on 
the one who would invade th[e] privacy [of an attorney's course of 
preparation] to establish adequate reasons to justify production through a 
subpoena or court order."); Fed. R. Civ. P. 26(b)(3) (requiring a showing 
that n the party seeking discovery has substantial need of the materials in 
the preparation of the party's case and that the party is unable without 
undue hardship to obtain the substantial equivalent of the materials by 
other means"). Other courts have applied the work product test in the 
context of criminal grand jury proceedings. See, e.g., In re John Doe, 662 
F.2d 1073, 1078 (4th Cir. 1981), cert. denied sub nom. Doe v. United 
States, 455 U.S. 1000 (1982); In re Grand Jury Investigation, 599 F.2d 
1224, 1228-1232 (3d Cir. 1979); In re Grand Jury Subpoena Dated Dec. 19. 
1978, 599 F.2d 504, 512-513 (2d Cir. 1979); In re Grand Jury Proceedings 
(Duffy), 473 F.2d 840, 842-849 (8th Cir. 1972). See also Roviaro v. United 
States, 353 U.S. 53, 62 (1957) (informer privilege); In the Matter of 
Certain Complaints Under Investigation, 783 F.2d 1488, 1520 (11th Cir.) 
(privilege for confidential communications among judges and their staffs), 
cert. denied sub nom. Hastings v. Judicial Conference, 477 U.S. 904 (1986); 
King v. Conde, 121 F.R.D. 180, 190-195 (E.D.N.Y. 1988) ("governmental 
privilege" for confidential police materials); Kelly v. City of San Jose, 
114 F.R.D. 653, 660-671 (N.D. Cal. 1987) (same); Hartman v. Remington Arms 
Co., 143 F.R.D. 673, 675 (W.D. Mo. 1992) (trade secrets privilege); Duplan 
Corp. v. Deering Milliken. Inc., 397 F. Supp. 1146, 1185 (D.S.C. 1974) 
(same). 
 
/15 Respondent argues (Br. in Opp. 27) that the enforcement of the subpoena 
in this case was called for in any event "because the official meetings in 
question occurred in the presence of third parties -- namely, Mrs. 
Clinton's personal attorneys." We disagree. There are important 
governmental interests in ensuring that agency counsel will be able to 
interview agency personnel as part of internal investigations, yet those 
officials may be unwilling to participate if the agency were forced to 
exclude their private counsel altogether in order to ensure that the 
investigation would be privileged. Thus, although the presence of Mrs. 
Clinton's private counsel does not prevent the government from waiving its 
privileges in the future, it did not result in an automatic abrogation of 
all protection for the information. 
 
Respondent also maintains (Br. in Opp. 26-27) that no valid privilege can 
be asserted in this case because Mrs. Clinton "is not a representative of 
the [White House] client under Upjohn." The district court correctly 
rejected that conclusion, see Pet. App. 70a-72a, and the court of appeals 
did not disagree with that aspect of the district court's decision.