Independent Counsel Kenneth Starr asked the Supreme Court on June 2, 1998 to intervene yet again -- this time in his attempt to compel Secret Service agents to testify in his investigation of the president. Starr wrote "We will be blunt: The nation has a compelling interest that this criminal investigation of the president of the United States conclude as quickly as possible ... The court's immediate review would powerfully serve that vital goal." Starr hoped to argue the issue of Secret Service and White House aides privilege before the Court on June 29, but on June 4, the Supreme Court denied his request to intervene on an emergency basis.

1. The critical fact justifying this Court's review -- and review before judgment in the Court of Appeals -- still remains: By asserting a purported privilege for governmental attorney- client communications, the President of the United States has directly challenged the ability of the federal grand jury to obtain evidence of possible criminal acts by the President and others. This is, save for Nixon, without parallel in the history of the Republic.

Because the President himself (among others) is under criminal investigation, the grand jury, this office, the President, the Congress, and the Nation have a compelling interest that the matter be resolved quickly and definitively. More months of protracted litigation are inimical to the Nation's well-being. The facts are needed, and they are needed now.

This is not our view alone. To the contrary, the President himself stated in January of this year that the American people are entitled to more rather than less, sooner rather than later. That is still true. We will be blunt: The Nation has a compelling interest that this criminal investigation of the President of the United States conclude as quickly as possible that indictments be brought, possible reports for impeachment proceedings issued, and non-prosecution decisions announced. This Court's immediate review would powerfully serve that vital goal.

The President's response treats this as a matter-of-fact investigation. But the unhappy fact is that, at the determination of the Attorney General herself, a President is under serious criminal investigation. That unfortunate circumstance is a rare occurrence in our Nation's history. A President who invokes governmental privileges that have the effect of thwarting such an investigation is even rarer. (Only two of forty-two Presidents have seen fit to do so.) And issues involving the President that arise during the course of such an investigation are necessarily vital to the functioning of the Executive Branch and to the people as a whole. In particular, few issues more directly implicate the rule of law than a President using, or appearing to use, newly asserted governmental privileges that serve, at least in part, to protect the personal interests of the President himself (and his close associates). Cf. Clinton v. Jones, 117 S. Ct. 1636 (1997).

2. We fully appreciate the weighty, prudential concerns that this Court's scarce resources not be expended on ordinary or unimportant legal issues, no matter how important the factual settings in which they arise. The precise question for this court's evaluation, therefore, is whether the issue of a governmental attorney-client or work product privilege in federal criminal proceedings is the kind of legal issue that warrants this Court's review.

On that question, the President himself has spoken.- Last year, he petitioned this Court for review of a decision from the United States Court of Appeals for the Eighth Circuit, In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir.), cert. denied, 117 S. Ct. 2482 (1997), rejecting these exact privileges in criminal proceedings. The President himself told this Court:

• "These rulings are important enough to require prompt review by this Court." Reply Br. for Pet'r 1, Office of the President v. Office of Independent Counsel, No. 96-1783 (emphasis added).

• "The Eighth Circuit has issued an extraordinary and unprecedented decision that will substantially impair the ability of the Office of the President (and other federal agencies) to secure sound legal advice . . . . Pet. for Writ of Cert. 9, Office of the President v. Office of Independent Counsel, No. 96- 1783.

• The Eighth Circuit's ruling (with which the district court here has largely agreed) is "indefensible" and would cause "grave consequences for the government." at 11, 10.

• "[T]he Eighth Circuit's ruling shapes the decision making of every official and every lawyer in the White House during every working day." Reply Br. for Pet'r 1, Office of the President v. Office of Independent Counsel, No. 96-1783.

• "These are now very real questions in the daily business of the White House. So long as they go unanswered, the resulting uncertainty will inevitably constrain the layman's willingness to seek legal advice . . . ." Id. at 2.

• "[T]he need for review is far greater here, [than in Clinton v. Jones] because substantial reliance interests are at stake . . . . [P]rompt and definitive explanation of the nature of the new rules is essential." Id. at 4.

• "[T]he majority's restrictions on the scope of the work product protection .... would have dramatic practical consequences...." Id. at 5.

At that time, in seeking to expedite the matter in the Court of Appeals, the President stated that the district court is order "has continuing adverse effects on the ability of White House Counsel and other senior advisors to advise the President and the White House." Appellant's Emergency Mot. to Expedite Consideration of Appeal, and for Expedited Briefing Schedule 2, In re: Sealed Case, Nos. 98-3060 & 98-3061 (emphasis added).

3. To be sure, we opposed the President's petition in Office of the President v. office of Independent Counsel. We believed then -- and believe now -- that the legal issue, while important, is straightforward. In our view, the issue is controlled by, inter alia, this Court's decision in Nixon and by 28 U.S.C. Section 535(b). See Pet. for Writ of Cert. 13-14. But our decision to oppose certiorari was based on our belief that this Court's review would delay the investigation -- a factor that now counsels in favor of prompt review. We also believed that the Eighth Circuit's well-reasoned decision, coupled with a denial of certiorari by this Court, would persuade the President to recede from his invocation of governmental attorney-client privilege in this investigation.

Our belief was mistaken. The President has chosen to assert the privilege again. Indeed, the President's vision of governmental attorney-client privilege has, if anything, expanded since this Court's denial of certiorari. Only a definitive decision from this Court will bring an end to such contrived privilege assertions.

4. The issues are fully developed for review by this Court, as the President and the Department of Justice suggested a year ago in urging this Court to grant certiorari. The Eighth Circuit last year issued a lengthy opinion analyzing the issues, In re Grand Jury Subpoena Duces Tecum, 112 F.3d at 913-26; Judge Kopf issued a separate opinion that, while also rejecting the White House's view, thoroughly analyzed the competing considerations, id. at 926-40 (Kopf, J., dissenting). In this case, Judge Johnson carefully considered these questions in her opinion in the district court. In sum, this Court, if it chooses to address the issue now, will have the benefit of three careful and lengthy opinions from lower courts and the full submissions of the President, the Department of Justice, and this office.

5. This Court's review of this case would correspond to review of another case as to which we today have filed a petition for certiorari before judgment. In that case, the United States Secret Service has asked the federal courts to create a privilege to prevent Secret Service agents and officers from testifying before the grand jury. That novel claim was rejected by the district court, in part on the basis of 28 U.S.C. Section 535(b). Section 535(b) imposes an affirmative duty on Executive Branch personnel to report "any information" regarding criminal activity by government officers and employees to the appropriate supervisory, normally the Attorney General. To the extent that Section 535(b) disposes of purported common-law governmental privileges asserted against a federal grand jury, this case and the Secret Service case go hand-in-hand.

6.[REDACTED].

7. The President argues that, unlike in Nixon, there are no impeachment proceedings under way. Br. for Resp't White House in Opp'n 10. The leadership of the House of Representatives has indicated that it awaits a report from this office before it will consider whether to hold impeachment proceedings. For its part, the White House has stated that the specter of such proceedings substantially impacts the orderly administration of the-Executive Branch. See Decl. of Charles F.C. Ruff Paragraph 18, In re Grand Jury Proceedings, Misc. Action Nos. 98-095, 98-096, 98-097 (D.D.C. May 4, 1998). In this regard, the Court may wish to consider the need submissions presented to the district court. The evidence contained therein demonstrates the importance of Mr. Lindsey's testimony to the investigation and to the weighty statutory responsibility imposed on this office.

The petition for a writ of certiorari before judgment should be granted.

¹The President's strategic use and later withdrawal of executive privilege is by no means novel. In 1996 the President asserted executive privilege in response to grand jury subpoenas issued in the Eastern District of Arkansas. After this Office fully briefed the issue in the district court, the President abandoned the claim. See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 913-14 (8th Cir.), cert. denied, 117 S. Ct. 2482 (1997). In this case, the President has done precisely the same thing after requiring substantial effort by the district court and filing a notice of appeal on that issue in the Court of Appeals. The President now says that he would not even have raised an executive privilege argument in the Court of Appeals. Br. for Resp't White House in Opp'n 1-2. That is inaccurate. The President filed a notice of appeal with respect to the testimony of Sidney Blumenthal, and the only privilege asserted as to Mr. Blumenthal was executive privilege.

² The President states that the issue here differs because the communications involve the President and his White House advisors. See Br. for Resp't White House in Opp'n 10. But the precise legal question presented a year ago was just that question. The President has never argued that the attorney-client privilege is more protective when it involves presidential communications; indeed, the President argued to the contrary a year ago.