This excerpted and redacted memo submitted to U.S. District Judge Norma Holloway Johnson and unsealed on May 27, 1998 outlines the White House argument for why Clinton aides Bruce Lindsey and Sidney Blumenthal would be protected from testifying before a grand jury hearing evidence in the Monica Lewinsky investigation.

"The White House Counsel and the President's senior advisors... provide advice concerning the official obligations of the President and the Office of the President, and are responsible for ensuring that, despite the pending litigation [the Paula Jones case], he is able to perform his constitutional duties with maximum effectiveness," the memo says. "It is only as to this advice -- from senior advisors like Mr. Blumenthal -- that the presidential communications privilege has been invoked."

The memo also mentions, in a footnote, a third White House aide -- not named -- from whom Starr wanted testimony that the White House originally attempted to protect through executive privilege: "By letter of March 4, 1998, however, the White House informed OIC of its willingness to allow non-lawyers such as [REDACTED], to testify to factual matters. We do not believe that, if recalled to testify before the grand jury, [REDACTED] would assert the privilege as to any of the factual matters about which the OIC seeks to compel [REDACTED] testimony."

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

IN RE: GRAND JURY PROCEEDINGS.

Misc. Nos. 98-095, 98-096, and 98-097 [REDACTED]

MEMORANDUM OF THE WHITE HOUSE IN OPPOSITION TO OIC'S MOTIONS TO COMPEL BRUCE LINDSEY AND SIDNEY BLUMENTHAL TO TESTIFY CONCERNING CONVERSATIONS PROTECTED BY THE ATTORNEY-CLIENT, PRESIDENTIAL COMMUNICATIONS, AND WORK PRODUCT PRIVILEGES

The Office of the President ("White House") submits this memorandum in opposition to the Motions to Compel the testimony of Bruce R. Lindsey and Sidney Blumenthal, filed by the Office of the Independent Counsel ("OIC") on March 6, 1998 ("OIC Motions").

INTRODUCTION

The President of the United States, if he is to perform his constitutionally assigned duties, must be able to obtain the most candid, forthright, and well-informed advice from his advisors. Only last year, the United States Court of Appeals for the District of Columbia Circuit reaffirmed that principle, emphasizing the importance of preserving confidentiality of presidential communications "to ensure that presidential decisionmaking is of the highest caliber, informed by honest advice and full knowledge." In re Sealed Case, 121 F.3d 729, 750 (D.C. Cir. 1997)

Yet, the Independent Counsel now asks the Court to strip away this constitutional protection on the ground that, by merely completing a subpoena form and sending it to one of the President's lawyers or his senior advisors, he becomes entitled, without any showing of need, to invade the legal and other confidential advice on which the President must rely. The OIC asks the Court, as well, to strip away from government lawyers and their clients the attorney-client privilege -- a claim that ignores the historical roots of the privilege, the Rules of Professional Conduct that apply in the District of Columbia, and the law of this jurisdiction.

As to the presidential communications privilege, the OIC ignores the teachings of the Court of Appeals and leaps from the bald assertion that only the President's private conduct is at issue here, to the conclusion that the advice he is given should not be protected. The OIC's contention is based on neither evidence nor logic. With respect to the Lewinsky matter,the grand jury is inquiring into actions allegedly taken by the President while in office -- indeed, actions that allegedly occurred in the White House itself. And as to the President's deposition, the mere fact that the Jones case involves alleged conduct before the President took office does not mean that the advice he is given concerning his constitutional duties somehow becomes "private." To the contrary, the Supreme Court itself acknowledged the potential impact of the Jones litigation on the daily business of the Presidency -- an impact that, however unlikely a prospect it was a year ago, is not all too real and tangible. Thus, even if one were to accept the OIC's description of the Jones case, or the President's alleged relationship with Ms. Lewinsky, as purely private, that description would be irrelevant to the question whether the communications at issue here are protected by privilege. The critical question is not the nature of the underlying conduct; it is the purpose of the advice being given.

But if there were any question about the official nature of the matters about which these witnesses have provided advice, one need only look to the ultimate purpose of the OIC's investigation. The Ethics in Government Act requires the OIC to submit to the House of Representatives any evidence of impeachable offenses. See 28 U.S.C. § 595(c). Impeachment is, of course, an action specifically directed at the President in his official capacity and is specifically provided for in the Constitution. See U.S. CONST. Art. II § 4. Indeed, it is uncertain at best whether the OIC constitutionally can even ask the grand jury to take action against the President in his personal capacity. See, e.g. Phillip B. Kurtland, Watergate and the Constitution 135 (1978) (reasoning that a sitting President could not be subjected to criminal prosecution because "[h]e is the sole indispensible man in government"). Any advice sought by the President to deal with the threat of impeachment is, by its very nature, official -- not private.

Even if there were no such threat overhanging the presidency, however, the advice at issue here must be treated as official and, thus, presumptively privileged. The distinction between those who give personal advice and those who give official advice to the President is clear. The President's private counsel provide advice concerning the response the response he must make to the particular demands the OIC and the Jones litigation place on him in his personal capacity. The White House Counsel and the President's senior advisors, on the other hand, provide advice concerning the official obligations of the President and the Office of the President, and are responsible for ensuring that, despite the pending litigation, he is able to perform his constitutional duties with maximum effectiveness. It is only as to this advice -- from senior advisors like Mr. Blumenthal -- that the presidential communications privilege has been invoked. Similarly, it is only as to legal advice given by Mr. Lindsey to the President in his official capacity that we have asserted the government's attorney-client privilege.

Finally, the circumstances under which the Independent Counsel has brought these Motions make clear the overly intrusive nature of his inquiry -- one launched with no sensitivity to the most rudimentary constitutional principles and seemingly intended to manufacture a constitutional confrontation. Recognizing the grand jury's legitimate interest in obtaining the evidence it needs, we have made clear to the OIC from the beginning our willingness to provide the facts relevant to its investigation to the fullest extent consistent with the President's constitutional obligations. But we have also made clear our firm conviction that the OIC can have no legitimate interest in the White House staff's discussions of political or legal strategy, much less in whether anyone, in or out of the White House, has spoken less than favorably about the OIC.

Consistent with this position, we informed the OIC as early as February 3, 1998, that, in shaping any limited invocation of executive privilege that might be necessary for the President's non-attorney advisors, we would, as we had in other cases, see e.g., Sealed Case, 121 F.3d at 735-36, distinguish between facts and advice. (See Declaration of Charles F.C. Ruff ("Ruff Decl.") at 32). This position was reaffirmed in out letter to the OIC of March 4, 1998, but our offer was spurned. (See Ruff Decl. Exhibits ("Exs.") 6,7). Indeed, the OIC moved to compel the testimony of [REDACTED] on the very same day that it rejected the White House's offer to withdraw the assertion of privilege as to [REDACTED] (See Ruff Decl. Ex. 7). And two days before that, the OIC rejected the White House's request that, before it launched any litigation, counsel meet to determine whether there could be an accommodation of the grand jury's interests with those of the Presidency -- a process specifically contemplated by the Court of Appeals as the vehicle for minimizing the risk of unnecessary constitutional conflict. See Sealed Case, 121 F.3d at 735 (OIC's motion to compel production of documents followed considerable negotiations with the White House).

The Independent Counsel comes before this Court seeking essentially unfettered authority to inquire into every conversation the President, his lawyers and his advisors have had about the Jones case and the Lewinsky matter. He does so without being willing to proffer to the court the slightest justification for that inquiry -- beyond his mere wish -- and in direct contravention of the Court of Appeals' mandate that any intrusion into privileged communications must be narrowly focused and specifically justified. As the following discussion will make clear, that wish is grounded neither in good law nor sensible constitutional practice.