Law is a bottomless pit.

                John Arbuthnot[1]

[Good Grief! I go away for a week and what happens when I return? Total shambles! If you can’t take a joke, take a nap? Really? What was Fred thinking? That Members of Congress are really kind of old and crotchety? That many of them really ought to retire? Let me assure our readers: That is not the official position of Elemental Zoo Two. We learned long ago that, when someone says, “Let’s change, things can’t get any worse than they are now,” often they do. We do not support change for the sake of change.

Your average voters, however, might have a different opinion, and who could blame them? Perhaps they look at our Congress, and the hosts of contributors, lobbyists and special interest groups that support it, and wonder why they, the voters, seem unable to affect the legislative work product. Perhaps they ask themselves, “What has Congress done for me lately?” and can’t come up with an answer.

Except, of course, they’re finding out Congress authorized, and supervised, massive spying on the American public. Apparently our Government has accumulated every telephone bill that you and I received since 2006, and copies of all our emails as well. Luckily they’re doing it just to keep us safe; our bureaucrats are all perfect, our Presidents are as well, and neither would misuse that stuff for personal or political reasons. Thank the Creator! Otherwise we might have a big problem in this country.

But problems like that, real or imagined, are not our topic for today. Instead, we’re going to look at really confidential information – not what you and I might have, but the conversations between a President and his White House lawyers and protectors – and see when those might be released to hostile investigators. The issue comes up, as you might guess, in impeachment proceedings, so you can think of this short dissertation as No. 4 of our Primers on Impeachment. As you know, Larry’s done the recent heavy lifting on this, so I’ve asked him to fill us in.

“Thanks, G; I’m a bit surprised to be back so soon, but I did have a chance to review Bill Clinton’s impeachment, and the debate about whether his lawyers and protectors could be forced to testify about conversations they had and things they saw. It was interesting because my memories of that episode were formed largely by the contemporary newspaper coverage, which was spotty at best. That’s because the case files at the time were mostly sealed; if you go back and look today, you get a much better picture of what happened.”

“Fine. I’m pretty hazy on the whole affair. After all, it was in 1998. What did happen?”

“The broad outline was this. Back then there were a number of allegations about the Clinton Administration and its people, so many, in fact, that an Independent Counsel was appointed to investigate. Under the law in force at the time, an outsider could be appointed to investigate high administration officials; the appointment would be made by a panel of three federal appellate judges, and once that was done, the DoJ had to withdraw from all competing investigations.[2] The Independent Counsel during most of this time was a fellow named Kenneth Starr.[3]

When Starr’s Grand Jury subpoenaed the Secret Service, the Administration objected. It argued, among other things, that there was a special evidentiary privilege that attached to these agents; by virtue of their job – to protect the President – they could refuse to testify about what they saw or heard unless the actions, etc., were clearly criminal.[4] Shortly thereafter the Administration took essentially the same position with respect a White House counsel. It argued that his communications with the President also were protected, but this time by attorney-client privilege.[5]

The cases wound their way through the courts without a lot of visibility, because, of course, the facts were sealed. But reporters did know that (i) attorney-client privilege was involved[6] (ii) a secret service[7] privilege also was asserted, and (iii) Starr had asked the Supreme Court for an expedited decision on one or more of these issues.[8] Today, however, we also know what the Court of Appeals had to say.”

“Interesting.”

The Secret Service Privilege

“Yes, it is. The Secret Service asserted a “protective function” privilege[9], arguing that it needed to protect what they saw or heard while while they were ‘in physical proximity to the President,’ unless what they saw or heard provided ‘reasonable grounds for believing that a felony has been, is being, or will be committed.’[10]

Rule 501 of the Federal Rules of Evidence says that, unless there is a contrary statute, etc., privileges, such as a testimonial privilege, are governed by the Common Law ‘interpreted…in the light of reason or experience.[11]The courts were directed to ‘continue the evolutionary development of testimonial privileges,’ but also had to recognize that ‘there is a general duty to give what testimony one is capable of giving.’[12]

“So what happened? We’ve got to move this along.”

“Stop pushing. There was little or no precedent on point, possibly because no one before had tried to compel testimony from agents guarding the President.[13] In those circumstances the Secret Service had to ‘establish clearly and convincingly both the need for and efficacy of the proposed privilege.’[14]

At the end of the day, the court found that the Secret Service had not met its burden.[15]

  • They had argued, for example, that the Secret Service needed to stay close to the President at all times, to protect him; if agents could be required to testify about what they saw, etc., he would tend to hold them off, especially at home. But the argument was speculative. Historically Presidents have been assassinated in crowds, i.e. at public events, not in the White House. So there would be no factual basis for extending a protective function privilege, if it existed, to the President’s private life. And it wouldn’t work, anyway. ‘[W]e suspect that even with a protective function in place, conscience might impel a President to distance himself from Secret Service agents when engaging in wrongful conduct, as might a simple desire for privacy at other times.’ [16]
  • Also, while the Secret Service argued for a privilege to protect agents from disclosing incriminating evidence about Presidents, etc., it didn’t require the agents to sign confidentiality agreements.[17] So, theoretically they were free to say anything they wanted after they left the job.
  •  And, in any case, Title 28 of the U.S. Code stated a strong Congressional policy in favor of disclosure. ‘[E]xecutive branch employees must report information ‘relating to violations of [criminal laws] involving Government officers and employees.’[18]

“Fine, we’ve beaten this one to death. No new privileges unless there is strong evidence they are needed. What about attorney client privilege? At least there’s precedent for that.”

Attorney-Client Privilege[19]

“Yes. Here the lawyer in question, Bruce Lindsey, was a Deputy White House Counsel. He was called before Ken Starr’s grand jury and refused to answer a series of questions partly on the grounds of attorney-client privilege. The privilege is well-recognized in U.S. law, and in some situations applies to government attorneys as well. It protects ‘confidential communications made between clients and their attorneys when the communications are for the purpose of securing legal advice or services.’[20]

The question was, ‘Did the privilege attach if the President informed the White House Counsel of facts or circumstances that indicated possible criminal conduct by government officials and others?[21]’ The answer was, ‘no, ’at least if the lawyer is called before a grand jury.”

… it would be contrary to tradition, common understanding, 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 information related to criminal misconduct, they may not rely on the government attorney-client privilege to shield such information from disclosure to a grand jury.[22]

“This is true because government attorneys, like all federal employees, have a positive duty to report criminal violations. ‘When an executive branch attorney is called before a federal grand jury about alleged crimes within the executive branch, duty and tradition dictate that the attorney shall provide that evidence.’[23]

“I understand, Larry, but what’s a President to do if he needs advice on a criminal matter and he can’t trust the White House counsel?”

“I guess he can hire a private attorney. ‘[N]othing prevents government officials who seek completely confidential communications with attorneys from consulting personal counsel.’[24]

“Fine, what happened next?”

The Supreme Court

“Both cases went to the Supreme Court. Both were argued there; everybody expected the Court to decide quickly and issue opinions. Well, the Court did the first part; it denied certiorari[25], i.e., said it wouldn’t go further with the cases, and sent them back to the appellate courts. To be clear, the Court didn’t make a ruling on the merits; instead it let the decisions below stand unaltered.[26]

“So there’s a fine kettle of fish! What happens if these issues surface again, say next year, when the Republicans get their blood up and shoot for impeachment? Will there be a replay of this litigation?”

“Possibly. In 1998 the Supreme Court dodged the issues and left matters to the D.C. Circuit. And the Circuit Court decisions were made by three judge panels; they’re not necessarily binding on other appellate judges and, in any case, 15 years have gone by; judges have retired and others, no doubt, have replaced them. So, at the end of the day, anything might happen if new litigators take up the fight for new clients.”

“OK, let’s suppose the 1998 appellate decisions aren’t controlling authority for new cases. But shouldn’t they be persuasive if the same issues come up again?”

“Possibly, but the Supreme Court dissenters of 1998 didn’t think that was enough. They thought the Court should have established some clear guidelines that everybody could follow.”

“Yes, well, now I see why you put that 17th/18th Century quote at the beginning of this piece. Law is truly a ‘bottomless pit,’ at least where people have to litigate the same issues over and over. Let me give you another observation from the same period:”

I know you lawyers can, with ease,

Twist words and meanings as you please,

That language, by your skill made pliant,

Will bend to favor ev’ry client[27]

So perhaps there’s another reason why we don’t get much finality in the law.”

“No comment,” said Larry


[1] John Arbuthnnot was a physician and pamphleteer who lived from 1667 to 1735. See The Oxford Dictionary of Quotations (Oxford, 2004) at Arbuthnot, p. 24, n. 6. Henceforth, the book will be cited as ODQ at __.

[2] Check out Wikipedia if you need a backgrounder on the Clinton impeachment. Just go to the Wikipedia website and search “Bill Clinton Impeachment,” or just click here: http://en.wikipedia.org/wiki/Bill_Clinton_impeachment

[3] If you want to know more about him, there’s a somewhat incomplete piece about him on Wikipedia. Just go to Wikipedia and search Ken Starr, or simply click here: http://en.wikipedia.org/wiki/Ken_Starr But don’t confuse him with Kenneth I Starr, who is a lawyer/accountant currently serving jail time for running a Ponzi scheme. See Wikipedia at http://en.wikipedia.org/wiki/Kenneth_I._Starr

[4] See Rubin, Secretary of the Treasury, et al. v. United States, Through the Independent Counsel, 525 U.S. 990-995 (1998)(cert. denied)(Breyer dissenting).

[5] See Office of the President v. Office of the Independent Counsel, 525 U.S. 996, 997 (1998) (cert denied) (Breyer dissenting).

[6] See Philly.com, Cannon, Starr Presses For Testimony From Lawyer The Independent Counsel Urged An Appeals Court To Reject an Assertion Of Attorney-client Privilege (June 30, 1998) at http://articles.philly.com/1998-06-30/news/25728678_1_grand-jury-kenneth-w-starr-starr-and-lawyers

[7] See CNN All Politics, Courson et al., Appeals Court Hears Arguments On Secret Service Privilege (June 26, 1998), at http://www.cnn.com/ALLPOLITICS/1998/06/26/lewinsky/index.html?_s=PM:ALLPOLITICS See also The New York Times, Labaton, Starr Sought Waiver of Privilege (May 20, 1998) at http://www.nytimes.com/1998/05/20/us/starr-sought-waiver-of-privilege.html

[8] See Philly.com, Epstein, Starr Presses Supreme Court He Urged A Quick Ruling To Force Secret Service Staffers To Testify About Clinton’s Contacts With Monica Lewinsky (June 3, 1998), at http://articles.philly.com/1998-06-03/news/25727720_1_lewis-c-merletti-kenneth-w-starr-attorney-client-privilege This was not unusual. He also asked for the same thing on a claim of executive privilege. See also Philly.com, Cannon, Privilege Fight Taken To High Court In An Unusual Move, Starr Sought An Expedited Ruling (May 29, 1998) at http://articles.philly.com/1998-05-29/news/25740279_1_executive-privilege-lindsey-and-blumenthal-kenneth-w-starr

[9] See 148 F.3d 1073: In Re: Sealed Case (July 7, 1998), currently available from Justia US Law, at http://law.justia.com/cases/federal/appellate-courts/F3/148/1073/510615/ For convenience, we’ll cite this as Secret Service at __. Citations will be to paragraphs within the decision

[10] See Secret Service at par. 5.

[11] See Secret Service at par. 8, 9.

[12] See Secret Service at par. 10.

[13] See Secret Service at par. 11: “[T]he OIC makes much of the lack of relevant federal or state precedent for the protective function precedent. The lack of such precedent is hardly surprising, however, in view of the novelty of the OIC’s demand for testimony: This appears to be the first effort in U.S. history to compel testimony by agents guarding the President.”

[14] See Secret Service at pars. 11 & 24

[15] See Secret Service at par. 13: “We do not think, however, that that the Secret Service has shown, with the compelling clarity required by Rule 501, that failure to recognize the proposed privilege will jeopardize the ability of the Secret Service effectively to protect the President.”

[16] See Secret Service at par. 22.

[17] See Secret Service at par. 19.

[18] See Secret Service at par. 23.

[19] See 148 F.3d 1100: In Re: Bruce R. Lindsey (grand Jury Testimony) (July 27, 1998), currently available from Justia US Law  at http://law.justia.com/cases/federal/appellate-courts/F3/148/1100/510445/ For convenience we’ll cite this as Lindsey at __. Citations will be to paragraphs within the decision

[20] See Lindsey at par. 8.

[21] See Lindsey at par. 3.

[22] See Lindsey at par. 56

[23] See Lindsey at par. 35.

[24] See Lindsey at par. 50.

[25] If you want to know more about certiorari, check out Wikipedia; just go to the website and search “certiorari,” or simply click here: http://en.wikipedia.org/wiki/Certiorari

[26] See Rubin, Secretary of the Treasury, et al. v. United States, Through the Independent Counsel, 525 U.S. 990-995 (1998)(cert. denied)(Ginsburg & Breyer dissenting); Office of the President v. Office of the Independent Counsel, 525 U.S. 996, 997 (1998) (cert denied) (Ginsburg & Breyer dissenting).

[27] See ODQ at John Gay, p. 342, n. 1. John Gay was an English poet and dramatist, who lived from 1685 -1732.He was almost an exact contemporary of John Arbuthnot.

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