White House Response to Starr's
Supreme Court Petition
The following is the full text of the June 1 White Hosue response to independent counsel Kenneth W. Starr's Supreme Court petition seeking a hearing on executive privilege. For more information, see the Post story.
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER,
WILLIAM JEFFERSON CLINTON AND THE
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR RESPONDENT
The Office of the President of the United States ("White House") opposes the petition of the Office of the Independent Counsel ("OIC") for a writ of certiorari before judgment to the United States Court of Appeals for the District of Columbia Circuit.
The OIC has proffered no reason, other than its own opinion, why, under Rule 11 of this Court, "the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this court." Indeed, the very fact that the OIC's petition purports to present questions that the Office of the President would not have raised in the court of appeals demonstrates how inadvisable it is for this Court to bypass the normal appellate process, which will inevitably narrow and shape the issues, and thus enable the parties to determine whether any remain that would warrant this Court's review. Moreover, in light of the fact that both parties have sought expedited briefing and argument in the court of appeals, the benefits that might flow from granting certiorari before judgment can reasonably be achieved without losing the benefit of that court's analysis.
STATEMENT OF THE CASE
On May 4, 1998, the United States District Court for the District of Columbia (Johnson, C.J.), granted the relief sought in motions filed by the OIC seeking to compel Bruce Lindsey, Deputy Counsel to the President, and Sidney Blumenthal, Assistant to the President, to testify concerning discussions they had had with the President of the United States and with presidential advisors. The President had asserted that certain of the communications at issue were covered by the presidential communications privilege, the governmental attorney-client privilege, and the attorney work product doctrine.
In its motions to compel, the OIC raised two legal arguments. First, it contended that, because the communications over which the President had asserted the presidential communications privilege related to private conduct, the privilege did not apply at all. Relying on this Court's opinion in United States v. Nixon, 418 U.S. 683 (1974), the district court rejected that argument. Indeed, the district court found as a fact that the communications that the grand jury was seeking were related to official decision-making:
At this stage, the Court has no evidence that Lindsey and Blumenthal's conversations discussing the Lewinsky and Jones matters were not related in some way to official decisionmaking. To the contrary, the Court has [REDACTED] sworn affidavits asserting that the conversations at issue involved official matters such as possible impeachment proceedings, domestic and foreign policy matters, and assertions of official privileges. The Office of the President submitted the affidavits "to establish as a factual matter that the communications in the White House over which executive privilege was being asserted related to official matters and official conduct." 3/20/98 Tr. at 43. The grand jury transcripts provided to the Court do not indicate that the witnesses refused to answer questions regarding conversations that did not relate to the President's official duties.
Pet. App. 5A.
The OIC also argued before the district court that, as a matter of law, the President could not assert a governmental attorney-client privilege in the face of a federal grand jury subpoena. The district court rejected this argument as well. The court held that the President did enjoy a governmental attorney-client privilege with members of his Counsel's Office, but, as was true of the presidential communications privilege, it could be overcome on the OIC's showings of need and inability to obtain the information from any other source. Pet. App. 12A-30A.
In its motion papers, and during the argument before the district court, the OIC initially asserted that it had no obligation to make a showing of need within the meaning of this Court's opinion in Nixon. Subsequent to oral argument, however, the district court issued two orders to the OIC directing it to make ex parte, in camera showings of need if it wished to overcome the presidential communications and govern mental attorney-client privileges. The White House has not seen either of these showings, has no information about what they contain (except as described in the district court's opinion and the OIC's response to the White House's filings), and does not know the manner in which the showings were made. As a consequence, the White House has not been able to address the substance of the OIC's purported showings.
On May 11, 1998, the White House moved the district court to reconsider some aspects of its May 4, 1998 ruling. The White House also advised the district court that it would file protective notices of appeal to forestall any later contention by the OIC that a subsequently filed appeal was untimely, and urged the district court to rule on the White House's motion. The White House filed protective notices of appeal on May 13, 1998, and moved the court of appeals for expedited briefing and argument.
The OIC then moved in the court of appeals to dismiss the appeals as premature. The court of appeals did not dismiss the appeals, but instead ordered on May 21, 1998 that the appeals be held in abeyance pending the district court's resolution of the Motion for Reconsideration In Part. The court of appeals withheld setting a briefing schedule or argument date until after the resolution of the motion for reconsideration.
On May 26, 1998, the district court granted in part and denied in part the White House's Motion for Reconsideration. The parties promptly notified the court of appeals of the district court's decision. On May 27, 1998, the court of appeals, on its own motion, vacated its order holding the appeals in abeyance, and restored the matters to the active docket. The court of appeals also denied, as moot, the OIC's motion to dismiss the appeals. It further ordered the OIC to reply to the White House's motion for expedited consideration, which the OIC had failed to do while its motion to dismiss was pending.
On May 28, 1998 the OIC petitioned this Court for a writ of certiorari before judgment in the court of appeals, and for expedited briefing and argument on an unreasonably constrictive timetable. The White House opposes the petition for a writ of certiorari before judgment and, in a separate response filed contemporaneously herewith, the motion for expedited determination.
REASONS FOR DENYING THE WRIT
The principal focus of the OIC's petition is on the application of executive privilege, even though the district court granted its motion to compel. Because the district court had reaffirmed the protection afforded by that privilege to the communications at issue here, the White House had determined, before the OIC filed its petition, not to pursue in the court of appeals what was the only remaining issue that is, the procedural question whether the district court was required to hear the answers to the OIC's questions in camera before determining whether the OIC had made a sufficient showing of need. Accordingly, the White House has moved to withdraw the appeal as to the testimony of Mr. Blumenthal, and will permit Mr. Lindsey to testify on matters otherwise covered by executive privilege on which the district has found the OIC's showing of need to be adequate. As a result, the application of executive privilege to the testimony of the two witnesses is no longer in controversy between the parties.
The OIC's decision to preempt the ordinary process of appellate review by rushing to this Court as a first resort, and filing a misdirected petition, illustrates quite plainly the reason for this Court's Rule 11, which provides that a petition for a writ of certiorari before judgment in the court of appeals will only be granted in the rarest and most compelling of circumstances. The court of appeals serves an important function in shaping and focusing the issues for possible presentation to this Court. The attempt to preempt the court of appeals has already precipitated the filing of a largely irrelevant petition with this Court. This circumstance alone reinforces this Court's usual practice of granting petitions only after the courts of appeals have had an opportunity to frame and address the issues.
In its decision on the merits of the executive privilege issue, the district court correctly rejected as "oversimplified" (Pet. App. 5A) the OIC's argument that the presidential communications privilege could not apply to the discussions among presidential advisors a ruling entirely consistent with this Court's holding in United States v. Nixon, 418 U.S. 683 (1974). The White House continues to have reservations that the procedures the district court followed and intends to follow as witnesses appear before the grand jury may inadequately protect the confidentiality of presidential communications. The White House will continue, however, to work with the district court to ensure that adequate safeguards are employed.
Because there is no adversary proceeding now pending between the parties on this issue, any ruling by this Court on the first question presented in the OIC's petition would amount to an impermissible advisory opinion.
A. This Case Does Not Meet The Requirements Of This Court's Rules For Granting A Petition For A Writ Of Certiorari Before Judgment
This Court traditionally has reserved the exercise of its discretion to grant a petition for a writ of certiorari before judgment to cases presenting the most profound and compelling circumstances. This Court's Rule 11 codifies both this historic reluctance and the strong preference not to disturb the usual process: "the case [must be] of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court." In no sense does this matter rise to the level of the few other occasions on which this Court has exercised this power.
Historically, this Court has exercised its discretion to grant a petition for a writ of certiorari before judgment in the courts of appeals in two categories: cases of overwhelming national emergency, such as in time of war; and cases where the courts below are in substantial disarray on highly important federal questions, and there has been development and disagreement among courts of appeals. In both categories, it has been inevitable that this Court would review at some time the issues presented.
The Court's invocation of what is now Rule 11 has occurred most commonly in cases raising issues of critical importance to the country as a whole. The steel mill seizure case falls most clearly in this category. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). There, the President had issued an executive order directing the Secretary of Commerce to seize the nation's steel mills during the Korean war. The President determined that such action was "necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production" and that "a strike disrupting steel production for even a brief period would . . . endanger the well-being and safety of the Nation." 343 U.S. at 582, 584. This Court granted a petition for a writ of certiorari before judgment after the district court had entered a preliminary injunction barring the President's action. Given the magnitude of the issue and its immediate impact, this Court could not have awaited the resolution of the issue through the normal appellate process.
United States v. United Mine Workers, 330 U.S. 258 (1947), presented a similar national crisis. The United States had taken possession of the nation's coal mines "after determining that labor disturbances were interrupting the production of bituminous coal necessary for the operation of the national economy during the transition from war to peace." 330 U.S. at 262 n.l. The issue on appeal was whether the district court had the power to issue an injunction to prevent the union from engaging in a nation-wide coal strike, a matter of overwhelming national importance which could not await resolution through the ordinary appellate process. See also Dames & Moore v. Regan, 453 U.S. 654 (1981) (need for immediate resolution of disposition of seized Iranian assets with impending deadline under diplomatic agreement with the Government of Iran); Ex parte Quirin, 317 U.S. 1 (1942) (issue involved the power of the courts in connection with the wartime court martial of enemy saboteurs).
United States v. Nixon, 418 U.S. 683 (1974), falls in this category as well. The proceedings in Nixon were at an advanced stage the grand jury's work had already yielded a number of indictments, including one naming President Nixon an unindicted coconspirator, before this Court intervened. 418 U.S. at 687. The subpoena at issue was for evidence in a criminal trial that was imminent. The House Judiciary Committee already had begun drafting articles of impeachment against President Nixon. Indeed, this Court's decision in Nixon "came down on the very day the Judiciary Committee's public debate on the proposed articles of impeachment got under way." Gerald Gunther, Judicial Hegemony and Legislative Autonomy: The Nixon Case and the Impeachment Process, 22 UCLA L. REV. 30, 31 (1974). There were already proceedings pending in both the legislative and judicial branches of government, the outcome of which would turn on an authoritative decision regarding the discoverability of the President's taped conversations. Moreover, executive privilege was, at that time, an open is-sue on which this Court had never previously spoken, and the President was taking the position that the courts had no power to compel evidence from him. In short, it was a time of substantial constitutional confrontation.
The second class of cases in which this Court has exercised its discretion to grant a writ of certiorari before judgment in the courts of appeals are those where numerous courts, including courts of appeals, have rendered conflicting decisions on an issue of nationwide impact. Mistretta v. United States, 488 U.S. 361 (1989), is one such example. There, this Court granted a petition for a writ of certiorari before judgment in the court of appeals in a case addressing the constitutionality of the sentencing guidelines. This Court commented that it was taking such an action "because of the disarray among the Federal District Courts." 488 U.S. at 371. Indeed, by the time of the Mistretta opinion, two courts of appeals had rendered conflicting decisions on the constitutionality of the guidelines. Id. at n.6. An immediate, authoritative determination on the constitutionality of the sentencing guidelines was warranted by the fact that the outcome of Mistretta would affect every federal criminal case in the nation.
In contrast, this matter is proceeding in an orderly and prompt manner in the lower courts. We are not in the throes of a national emergency of the type described in Youngstown, United Mine Workers, and Dames & Moore. And there is certainly no disarray among the lower courts as was present in Mistretta. Despite the OIC's claims to the contrary, the fate of the Nation will not hang in the balance if the OIC is required to participate in the court of appeals on an expedited basis before seeking this Court's intervention.
B. The Expedited Treatment Both Parties Have Proposed In The Court Of Appeals Is Fully Consistent With This Court's Prompt Review, Should That Be Deemed Appropriate
Should there remain after the court of appeals' decision any issue that merits review by this Court, such review could be accomplished expeditiously. Both parties have proposed to the court of appeals expedited schedules that would result in argument by the end of July. A prompt decision by that court would in turn permit the parties to determine whether it was necessary to seek further review and for this Court to set an appropriately expedited schedule.
With the question presented, with respect to the White House, narrowed to that arising out of the governmental attorney-client privilege, the benefits that this Court normally derives from fuller explication of legal issues by the courts of appeals are particularly pronounced. The Court of Appeals for the District of Columbia Circuit has developed over the years a body of decisional law that is specially focused on the issues arising out of the governmental attorney-client privilege -issues that, in their nature, arise with the greatest frequency in that court's jurisdiction. See, e.g., Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997); Brinton v. Dep't of State, 636 F.2d 600, 603 (D.C. Cir. 1980); Mead Data Central v. United States Dep't of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977).
Moreover, this Court also currently has before it a case from the court of appeals that may well have a bearing on the resolution of the claims of attorney-client privilege at issue here. See Swidler & Berlin v. United States, 118 S. Ct. 1358 (1998). To the extent that this Court's decision illuminates whether, in the circumstances presented, the historically absolute attorney-client privilege may become merely a qualified privilege in the face of a grand jury subpoena, it will surely assist the court of appeals in addressing the issues before it in this case.
Lastly, granting certiorari before judgment in this case will require this Court to resolve an issue on which no court of appeals has spoken. The OIC's suggestion that the Eighth Circuit's decision in In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir.), cert. denied, 117 S. Ct. 2432 (1997), supplies adequate guidance for this Court (Pet. 11) is fundamentally wrong, for the Eighth Circuit's decision simply did not address the question whether the President in his official capacity has an absolute attorney-client privilege with White House Counsel.
Less than a year ago, this Court denied the White House's petition for certiorari seeking review of the Eighth Circuit's decision that no attorney-client privilege protected communications between the White House Counsel and the First Lady sought by the OIC. See Office of the President v. Office of Independent Counsel, 117 S. Ct. 2482 (1997). At that time, the OIC strongly urged this Court not to grant the petition. While we continue to believe that the Eighth Circuit's ruling was incorrect, nothing in the current state of the law warrants this Court's review before the court of appeals has had the opportunity to address the issue.
The only development since the denial of our petition last year is the decision by Chief Judge Johnson affording the Office of the President the protection of a qualified attorney-client privilege. In essence, the OIC is complaining that, in granting its motion, a federal district judge failed to follow a precedent set by a federal court of appeals in a different jurisdiction. In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir.), cert. denied, 117 S. Ct. 2432 (1997). But a disagreement between a single district judge and a single court of appeals does not amount to a circuit split that would warrant the granting of certiorari, even in normal circumstances under this Court's Rule 10(a), much less before judgment under Rule 11.
On the merits, we believe that the OIC's position, which rests principally on the proposition that 28 U.S.C. sect; 535(b) overrides the attorney-client privilege, is misguided. As a matter of policy, the White House follows the dictates of section 535(b), reporting to the Attorney General any information it receives of violations of Title 18 by executive branch officials. We note, however, that the statute, by its terms, does not apply to the Office of the President. The Office of the President is not a "department or agency of the executive branch of the government." 28 U.S.C. sect; 535(b) (emphasis added). See also 28 U.S.C. sect; 451 (defining terms "department" and "agency" as used in Title 28); 5 U.S.C. sect; 101 (enumerating departments within the Executive Branch); Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156 (1980) ("the Office of the President . . . . [is] not included within the term 'agency'" as used in the Freedom of Information Act). Simply stated, Congress has not applied this obligation to the White House, and thus has not "spoken" against the application of the privilege" in this context. Moreover, the Department of Justice has consistently interpreted the statute as not abrogating the attorney-client privilege. See Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, Memorandum for the Deputy Attorney General Re: Disclosure of Confidential Information Received by U.S. Attorney in the Course of Representing a Federal Employee at 2 (Nov. 30, 1976); Ralph W. Tarr, Acting Assistant Attorney General, Office of Legal Counsel, Duty of Government Lawyers Upon Receipt of Incriminating Information in the Course of an Attorney-client Relationship With Another Government Employee at 6 (May. 29, 1985). The district court here held that "section 535(b) neither precludes nor requires the recognition of a governmental attorney-client privilege in the federal grand jury context." Pet. App. 25A.
Finally, the Eighth Circuit did not have before it the application of the governmental attorney-client privilege under the factual and legal circumstances presented here. That case arose from a subpoena directed to conversations between White House Counsel and the First Lady, involving conduct before the President took office. By contrast, it is apparent that the OIC's investigation here is a precursor to a possible referral to the House of Representatives pursuant to 28 U.S.C. sect; 595(c). Such a proceeding would be against the President in his official capacity, represented in that matter by the Counsel to the President. Moreover, some of the questions the OIC has posed to Mr. Lindsey relate to advice to the President about the assertions of privilege in this very litigation. In this setting, where the White House is undeniably an adversary of the OIC, the President is entitled to an absolute attorney-client privilege for his discussions with White House counsel, just like any other party to a legal proceeding.
For all these reasons, allowing the court of appeals in this case to assess the rationale of the Eighth Circuit's decision and determine whether it ought to govern in the District of Columbia will allow this Court to benefit from the court of appeals' informed deliberation.
The petition for a writ of certiorari before judgment in the court of appeals should be denied.
W. Neil Eggleston
Counsel for Respondent
June 1, 1998
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