## Facts

- An Independent Counsel conducting a federal criminal investigation connected to the “Whitewater” matter issued a grand jury subpoena duces tecum to the White House (Office of Counsel to the President).
- The subpoena sought documents created during meetings attended by White House counsel and Hillary Rodham Clinton concerning specified Whitewater-related topics.
- The White House identified nine sets of responsive attorney notes but withheld them based on executive privilege, attorney-client privilege, and the work-product doctrine.
- The Independent Counsel moved to compel production of two sets of notes, including notes taken by Associate White House Counsel Miriam Nemetz at a July 11, 1995 meeting attended by Hillary Rodham Clinton, White House Special Counsel Jane Sherburne, and Mrs. Clinton’s personal attorney David Kendall.
- The district court denied the motion to compel, finding the communications reasonably expected to be attorney-client privileged and the notes protected as attorney work product.
- The Independent Counsel appealed the denial.

## Issues

1. Whether attorney-client privilege barred enforcement of a federal grand jury subpoena for White House counsel notes reflecting communications involving Mrs. Clinton and counsel during a criminal investigation.
2. Whether the work-product doctrine barred production of those notes to the grand jury.
3. Whether the official-capacity nature of White House counsel and governmental confidentiality interests limited or defeated asserted privileges in the grand jury context.

## Decision

- The Eighth Circuit reversed and remanded with instructions that the subpoenaed materials be produced to the grand jury.
- The court held the asserted attorney-client privilege did not justify withholding the documents from a federal grand jury in this criminal investigation.
- The court held the work-product doctrine did not categorically bar production; any narrow protection for opinion work product could be addressed through in camera review and limited redaction.
- The court set aside the district court’s blanket privilege and work-product rulings and required compliance with the subpoena, subject to limited judicial screening for opinion work product.

## Legal Principles

- Privileges asserted to withhold evidence from a federal grand jury are narrowly construed because they operate as exceptions to the general duty to provide evidence in criminal investigations.
- Government attorney-client privilege, when asserted through executive-branch counsel, is constrained where it would obstruct a federal grand jury’s investigation into potential criminal conduct within the executive branch.
- The White House Counsel’s legal role is tied to official governmental functions; privilege claims in that setting are evaluated in light of public duties and the grand jury’s truth-seeking function.
- The work-product doctrine is qualified, not absolute, in the grand jury setting; factual work product may be produced upon a sufficient showing of need.
- Potential protection for opinion work product may be handled through in camera review and limited redaction rather than wholesale nonproduction.

## Conclusion

The Eighth Circuit required production of White House counsel meeting notes to a federal grand jury investigating executive-branch-related criminal matters, rejecting a broad attorney-client privilege claim and limiting work-product protection to any narrowly defined opinion material addressed through in camera review.


In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997)