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Starr's Supreme Court Petition on Executive Privilege

Washingtonpost.com
Thursday, May 28, 1998

The following is the full text of independent counsel Kenneth W. Starr's May 28 petition to the Supreme Court seeking a hearing on executive privilege issues before the court's summer recess. For more information, see the Post story.

IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997

UNITED STATES OF AMERICA, PETITIONER
V.
WILLIAM JEFFERSON CLINTON and THE OFFICE OF THE PRESIDENT OF THE UNITED STATES, RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

KENNETH W. STARR
Independent Counsel

BRETT M. KAVANAUGH
MICHAEL L. TRAVERS
Associate Independent Counsel


QUESTIONS PRESENTED

In United States v. Nixon, 418 U.S. 683, 712-13 (1974), this court held that the constitutionally based executive privilege for presidential communications "cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice." In addition, section 535 (b) of title 28 requires that all Executive Branch officials expeditiously provide federal law enforcement authorities "[a]ny information" relating to possible federal criminal violations.

The questions presented are as follows:

1. Whether, in light of Nixon, executive privilege asserted by Counsel for the Office of the President authorizes President Clinton to prevent White House officials from testifying before a federal grand jury investigating possible federal crimes committed in connection with a private federal civil case.

2. Whether, in light of Nixon and § 535 (b), a common-law governmental attorney-client or work product privilege authorizes President Clinton to prevent White House officials from testifying before a federal grand jury investigating possible federal crimes committed in connection with a private federal civil case.

3. [REDACTED].

PARTIES TO THE PROCEEDING

The parties to the proceeding are:

(i) the United States of America, represented in this criminal investigation by the Office of Independent Counsel In re Madison Guaranty Savings & Loan Association, see 28 U.S.C. § 594 (a) (9);

(ii) the Office of the President of the United States, which has asserted executive privilege, governmental attorney-client privilege, and governmental work product protection; and

(iii) William Jefferson Clinton, who has asserted [REDACTED].


   


IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997
UNITED STATES OF AMERICA, PETITIONER

V.
WILLIAM JEFFERSON CLINTON and THE OFFICE OF THE PRESIDENT OF THE UNITED STATES, RESPONDENTS


PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

The United States of America, by Kenneth W. Starr, Independent counsel, see 28 U.S.C. § 594(a)(9), petitions for a writ of certiorari before judgment to the United States Court of Appeals for the District of Columbia Circuit. See Sup. Ct. R. 11; 28 U.S.C. §§ 1254(1), 2101(e).

OPINIONS BELOW

The district court's opinion and order entered May 4, 1998, granting the United States, motions to compel Bruce Lindsey and Sidney Blumenthal to testify (Pet. App. 1a, 52a), is not yet officially reported. The district court's opinion and order of May 26, 1998, granting in part and denying in part the motion for reconsideration by the President in his official capacity (Pet. App. 55a), is also not yet officially reported.

JURISDICTION

The order of the district court was entered on May 4, 1998, in In re Grand Jury Proceedings (D.D.C. Misc. Nos. 98-095, 98-096, and 98-097 (NHJ)). On May 11, 1998, the Office of the President filed motions for reconsideration of the district court's May 4, 1998, order as it applied to Messrs. Lindsey and Blumenthal. Pet. App. 55a. On May 13, 1998, William Jefferson Clinton and the Office of the President filed notices of appeal in Misc. Nos. 98-095 and 98-096. That same day, the certified record from the district court was docketed in the United States Court of Appeals for the District of Columbia Circuit (Nos. 98- 3060 98-3061, and 98-3062). On May 26, 1998, the district court denied the motions for reconsideration. Pet. App. 55a. On May 27, 1998, the court of appeals issued an order returning the consolidated appeals to the active docket. Pet. App. 59a. The jurisdiction of this Court to review the instant case, which is now pending in the court of appeals, see Gay v. Ruff, 292 U.S. 25, 30 (1934), is invoked under 28 U.S.C. §§ 1254(l) and 2101(e).

STATUTE AND RULES INVOLVED

The relevant portions of 28 U.S.C. § 535(b), Fed. R. Evid. 501 and Fed. R. Civ. P. 26(b)(3) are reproduced in the appendix.

STATEMENT

1. The district court granted motions filed by the United States, represented by the office of the independent Counsel ("OIC") see 28 U.S.C. § 594(a)(9), seeking to compel the testimony of presidential aides Bruce Lindsey and Sidney Blumenthal before a federal grand jury sitting in the District of Columbia. The grand jury is investigating
to the maximum extent authorized by the Independent Counsel Reauthorization Act of 1994 whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses or otherwise violated federal law other than a Class B or Class C misdemeanor or infraction in dealing with witnesses, potential witnesses, attorneys, or others concerning the civil case Jones v. Clinton.
In re: Madison Guaranty Savings & Loan Association (D.C. Cir. Spec. Div. Jan, 16, 1998).

Monica Lewinsky is a former White House intern and employee of the White House's Office of Legislative Affairs. On December 5, 1997, President Clinton received notice that Monica Lewinsky's name was on a list of witnesses to be called by Paula Jones in the Jones v. Clinton litigation. On December 19, 1997, Ms. Lewinsky was served with a subpoena requiring her to testify at a deposition in the Jones case and to produce certain documents and other objects relating to contacts between her and President Clinton. On January 7, 1996, Ms. Lewinsky signed an affidavit representing under penalty of perjury that she had not had a sexual relationship with President Clinton.

2. On January 12, 1998, this Office received allegations relating to Ms. Lewinsky and the Jones case. The substance of these allegations was (i) that Ms. Lewinsky had had a sexual relationship with President Clinton; (ii) that a friend of the President had advised Ms. Lewinsky on how to respond to her subpoena in the Jones case, found an attorney to represent her, and helped her find a new job; and (iii) that Ms. Lewinsky had tried to persuade Linda Tripp, a witness in the Jones suit, to commit perjury in connection with that case.

These allegations related to the OIC's investigative jurisdiction in two ways. First, Linda Tripp has been a witness in several matters already within the OIC's jurisdiction, including the investigation into the death of Deputy White House Counsel Vincent W. Foster, Jr., the handling of documents from Mr. Foster's office, and White House Travel Office matters. Second, the OIC was investigating – and continues to investigate – a number of large consulting payments made to Webster Hubbell, a witness in other matters within the OIC's jurisdiction. Some of those payments were arranged with the aid of an individual who helped Ms. Lewinsky obtain a job at a company that had also offered Mr. Hubbell a lucrative consulting contract.

After gathering preliminary evidence, the OIC reported to officials of the Department of Justice on January 15, 1998, and made the evidence available to them. On the following day, the Attorney General petitioned the Special Division, on an expedited basis, to expand the OIC's jurisdiction. At the Attorney General's request, the Special Division conferred jurisdiction on the OIC to investigate "whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses or or otherwise violated federal law . . . ." On January 17, 1998, President Clinton was deposed in connection with the Jones case, and was asked a number of specific questions about his relationship with Monica Lewinsky.

3. The Special Division's jurisdictional grant authorizes the Independent Counsel to investigate whether federal crimes may have been committed by Monica Lewinsky "or others" in connection with the Jones litigation. Pet. App. 12. The testimony that the grand jury seeks from Messrs. Lindsey and Blumenthal "is likely to shed light on" this inquiry. Id. More specifically, as the district court explained,

If there were instructions from the President to obstruct justice or efforts to suborn perjury, such actions likely took the form of conversations involving the President's closest advisors, including Lindsey and Blumenthal. Additionally, if the President disclosed to a senior adviser that he committed perjury, suborned perjury, or obstructed justice, such a disclosure is not only unlikely to be recorded on paper, but it also would constitute some of the most relevant and important evidence to the grand jury investigation.
Id.

   


4. a. On February 18, February 19, and March 12, 1998, Bruce Lindsey, Assistant to the President and Deputy Counsel, appeared before the grand jury in Washington, D.C. to testify. Mr. Lindsey asserted executive privilege (both in the form of a presidential communications privilege and a deliberative process privilege), governmental attorney-client privilege, governmental work product protection, [REDACTED] in refusing to answer a number of questions regarding Monica Lewinsky, the civil case Jones v. Clinton, and the Independent Counsel's investigation.

b. [REDACTED] asserted executive privilege in refusing to answer a number of questions that sought the substance of conversations regarding Monica Lewinsky, the civil case Jones v. Clinton, and the Independent Counsel's investigation.

c. On February 26, 1998, Sidney Blumenthal, Assistant to the President, appeared before the grand jury to testify. Mr. Blumenthal asserted executive privilege in refusing to answer a number of questions regarding Monica Lewinsky, the civil case Jones v. Clinton, and the independent Counsel's investigation.

5. On March 6, 1998, the United States moved the district court to compel Bruce Lindsey (No. 98-095), Sidney Blumenthal (No. 98-096), and [REDACTED] (No. 98-097) to testify before the grand jury regarding the matters as to which they had asserted privileges. In addition to the individual grand jury witnesses, both the President in his personal capacity and the office of the President opposed the United States's motions. Closed hearings on the motions were held before the district court on March 20 and 24, 1998.

6. In its opinion and order entered May 4, 1998, the district court granted the motions to compel Bruce Lindsey and Sidney Blumenthal to testify before the grand jury. 1

The district court began its executive privilege analysis by examining the nature of the testimony at issue. Finding that the conversations of Messrs. Lindsey and Blumenthal about the Lewinsky and Jones matters could be related at least in part to the President's official decisionmaking, the Court concluded that the subpoenaed testimony must be treated as presumptively privileged. Pet. App. 2a-3a (citing Nixon, 418 U.S. at 713).

The court went on to discuss the scope of the privilege for presidential communications, relying on In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997), for the proposition that the President need not personally participate in a communication among his advisers in order for the communication to be privileged. Applying this principle, the court concluded that, although the conversations at issue between Mr. Blumenthal and First Lady Hillary Rodham Clinton are within the privilege, those between Mr. Lindsey and a private individual are not. Pet. App. 6a-8a.

Relying on United States v. Nixon, 418 U.S. 683, and In re Sealed Case, 121 F.3d at 754, the district court next determined that "the presumption of privilege may be rebutted by a sufficient showing of need by the Independent Counsel." Pet. App. 8a-9a. This showing, the district court held, could be met by specifically demonstrating "'first, that each discrete group of the subpoenaed materials likely contains important evidence; and second that this evidence is not available with due diligence elsewhere.'" Id. at 9a (quoting In re Sealed Case, 121 F.3d at 754). The district court recognized that the first requirement "will not typically have much impact because Federal Rule of Criminal Procedure 17(c) already limits a subpoena to relevant information." Id. As to the second, the district court quoted the D.C. Circuit's conclusion that the standard will be "easily" satisfied when "an immediate White House advisor is being investigated for criminal behavior." Id. at 10a (quoting In re Sealed Case, 121 F.3d at 755). Applying this standard to the United States, in camera need submission, the court determined that executive privilege did not justify nondisclosure in this case, and that the United States' motion to compel would therefore be granted with respect to Messrs. Lindsey and Blumenthal. Id. at 10a-13a.

[REDACTED]

The district court then considered the President's claims of governmental attorney-client privilege with respect to Mr. Lindsey. Drawing on reasoning from both the majority opinion and the dissent in In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 926-27 (8th Cir.), cert. denied, 117 S. Ct. 2482 (1997), the district court concluded that any governmental attorney-client privilege must yield when a showing sufficient to meet the executive privilege standard had been made. Pet. App. 32a. In light of the United States' in camera need submission, the Court determined that this standard had been met. Id. at 43a-48a.

Finally, the district court held that the governmental work product doctrine did not apply to interviews with grand jury witnesses or their counsel conducted by Mr. Lindsey, because such interviews were not conducted in anticipation of litigation involving the Office of the President. Id. at 48a-50a.

7. On May 11, 1998, the Office of the President filed motions for reconsideration of the district court's May 4, 1998, order as it applied to Messrs. Lindsey and Blumenthal. Pet. App. 55a. On May 13, 1998, while the motions for reconsideration were still pending, William Jefferson Clinton and the Office of the President filed notices of appeal in Misc. Nos. 98-095 and 98-096. On May 14, the United States filed corresponding motions in the D.C. Circuit to dismiss these appeals for lack of appellate jurisdiction. On May 21, the D.C. Circuit entered an order consolidating the appeals, and directing that they "be held in abeyance pending the district court's disposition of the motions for reconsideration pending before it in the underlying cases." Pet. App. 53a. On May 26, 1998, the district court entered an order granting in part and denying in part the motions for reconsideration. On May 27, 1998, the D.C. Circuit entered an order dismissing the United States' motion to dismiss as moot and ordering that the consolidated appeals be returned to the active docket. Id. at 59a. The United States now seeks certiorari before judgment.

REASONS FOR GRANTING THE WRIT

1. This case is of high moment. It is strongly in the Nation's interest that the case be resolved quickly so that the grand jury's investigation can move forward at the earliest practicable date. If the decision below were to proceed through the normal processes of appellate review, important portions of this investigation would be substantially delayed. The need for expedition of this aspect of the United States' investigation has. been widely acknowledged, including by respondents.

This case presents a direct challenge by the Office of the President to the ability of a federal grand jury to obtain relevant evidence of possible criminal activity by Executive Branch officials. In cases presenting issues of similar significance, this Court has granted a writ of certiorari before final judgment in the court of appeals "because of the public importance of the issues presented and the need for their prompt resolution." United States v. Nixon, 418 U.S. 683, 687 (1974); see, e.g., Mistretta v. United States, 488 U.S. 361, 371 (1989) Dames & Moore v. Regan, 453 U.S. 654, 667 (1981); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584 (1952); United States v. United Mine Workers, 330 U.S. 258, 269 (1947); see also Sup. Ct. R. 11.

Immediate consideration by this Court would not sacrifice any benefits of intermediate appellate review. The Court of Appeals for the District of Columbia Circuit and the Court of Appeals for the Eighth Circuit have heretofore considered and ruled on the main legal issues presented for review. See In re Sealed Case, 121 F.3d 729; In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910. In addition, the district court's opinion thoroughly analyzes the relevant issues.

2. The principal legal issues in this case are resolved either directly or by necessary inference from this Court's decision in United States v. Nixon. But the President disagrees. As with Nixon, therefore, this case is exceedingly important.

In particular, because the President has invoked executive privilege to prevent Messrs. Lindsey and Blumenthal from testifying, this litigation involves fundamental constitutional issues arising out of the doctrine of separation of powers. The invocation of executive and other privileges in this context also presents a question of overriding concern to the full and impartial administration of justice: the circumstances under which the Executive Branch may withhold information from a federal grand jury investigating allegations of misconduct against the President, other Executive Branch officials, and various private individuals.

   


3. In United States v. Nixon, this Court held that the applicability of executive privilege turns on the nature of the proceeding and the substance of the information sought. 418 U.S. at 703-16. "Absent a claim of need to protect military, diplomatic, or sensitive national security secrets," the President's "generalized interest in confidentiality cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice." Id. at 706, 713. Thus, in a criminal investigation, executive privilege simply does not justify withholding of information outside the realm of documents or communications that implicate military, diplomatic, or sensitive national security secrets.

The Office of the President has previously argued that, notwithstanding Nixon, the prosecutor and grand jury cannot obtain relevant information from the Office of the President without demonstrating a critical need for the information. The standard proposed by the Office of the President is flatly inconsistent with the decision in Nixon. See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 919 n.9 (8th Cir. 1997); United States v. North, 910 F.2d 843, 951-92 (D.C. Cir. 1990) (Silberman, J., concurring in part and dissenting in part); cf. In re Sealed Case, 121 F.3d at 754-62 (rejecting standard that information be "critical to an accurate judicial determination," but adopting heightened standard of relevance for grand jury investigation of non-White House officials). In any event, any standard of heightened relevance is abundantly satisfied on the facts of this case, as the district court correctly concluded. See Pet. App. 10a-13a.

The executive privilege claim in this case also fails at a more basic and threshold point. Under Nixon, executive privilege applies only to conduct and communications made in furtherance of a President's Article II duties. See Nixon, 418 U.S. at 705-06. Executive privilege is, by its nature, a governmental privilege that stems from the President's powers under Article II. It cannot and should not be asserted to deny the grand jury evidence of communications about private conduct, particularly in the absence of a showing that the communications about private conduct were in furtherance of a specified Article II function. See Clinton v. Jones, 117 S. Ct. 1636, 1639-44 (1997). The communications at issue in this case – discussions relating to or arising out of a private civil case involving the President in his personal capacity – fall outside that ambit.

4. The Office of the President also has advanced claims of governmental attorney-client and work product privilege. The Office of President contends that it can assert such privileges against a federal grand jury to the same extent as a corporation. No constitutional provision, statute, rule, regulation, or case supports that bold assertion. See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (rejecting argument); Pet. App. 34a-42a (same). But the office of the President has refused to acquiesce, persisting month after month in resisting grand jury subpoenas on this basis.

These common-law privilege claims are flawed for at least two reasons. First, Congress has spoken. Section 535(b) of title 28 requires that "[a]ny information, allegation, or complaint received in a department or agency of the executive branch" be "expeditiously reported" to the Attorney General or other designated official. Section 535(b) trumps any common-law privilege asserted under Rule 501. See Fed. R. Evid. 501 (federal courts do not have authority to recognize common-law privileges that would be inconsistent with federal statutes). Second, even apart from § 535(b), this Court's decision in Nixon contravenes any governmental attorney-client privilege in federal grand jury proceedings. In Nixon, the executive privilege for presidential communications – a privilege that is constitutionally based, historically rooted, and "fundamental to the operation of Government," 418 U.S. at 708 – was overcome by the need for relevant evidence in criminal proceedings. It is untenable to say that communications that fall within the executive privilege are less worthy of protection in criminal proceedings than are communications between a government employee and government attorney. The district court correctly concluded that a governmental attorney-client or work product privilege can be no broader than executive privilege.[FOOTNOTE REDACTED]

5. [REDACTED].

CONCLUSION

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


1 In light of the Office of the President's representation that [REDACTED] would not assert executive or governmental attorney-client privilege in any future questioning before the grand jury, the Court denied the motion to compel [REDACTED] to testify as moot. Back to text


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