## Facts

- A Special Division expanded the Independent Counsel’s mandate to investigate possible perjury, obstruction, and related federal crimes tied to a civil suit against President Clinton.
- A federal grand jury subpoenaed Bruce R. Lindsey, Deputy White House Counsel and Assistant to the President, to testify about communications potentially bearing on criminal conduct by government officials, including the President.
- Lindsey refused to answer certain questions, asserting (1) a governmental attorney–client privilege, (2) executive privilege, and (3) the President’s personal attorney–client privilege based on Lindsey’s role in communications between the President and private counsel.
- The Independent Counsel moved to compel testimony in the U.S. District Court for the District of Columbia, which granted the motion.
- The Office of the President and President Clinton (personally) appealed the compulsion order to the D.C. Circuit.

## Issues

1. Whether a governmental attorney–client privilege permits a government lawyer to refuse to answer a federal grand jury’s questions concerning possible crimes by government officials.
2. Whether the President’s personal attorney–client privilege extends to a government lawyer acting as an intermediary between the President and the President’s private counsel, allowing refusal to answer grand jury questions.
3. Whether a common-interest doctrine between the Office of the President and the President’s private counsel bars grand jury questioning about potential criminal activity.

## Decision

- The D.C. Circuit largely affirmed the order compelling Lindsey’s grand jury testimony.
- The court held that any governmental attorney–client privilege does not allow a government lawyer to withhold information from a federal grand jury investigating possible criminal wrongdoing by government officials.
- The court recognized a narrow application of the President’s personal attorney–client privilege where Lindsey acted solely as an intermediary transmitting confidential communications between the President and private counsel.
- The court rejected using a common-interest theory between the Office of the President and the President’s private counsel to block grand jury questioning.
- A separate opinion concurred in part and dissented in part regarding the scope and treatment of privilege in the grand jury setting.

## Legal Principles

- In a federal grand jury investigation of possible crimes by government officials, a government lawyer generally must testify; confidentiality interests of governmental legal advice do not operate as a privilege against the grand jury’s demand for evidence.
- The “client” of government counsel is ultimately the public interest in lawful administration, which weighs heavily against withholding relevant evidence of official wrongdoing from a grand jury.
- Personal attorney–client privilege may extend through a necessary intermediary, but only for communications where the intermediary’s role is limited to facilitating the privileged relationship (not providing governmental legal advice).
- The common-interest doctrine does not shield communications from a federal grand jury merely because government and personal counsel assert aligned interests in responding to an investigation.

## Conclusion

The court compelled grand jury testimony by a senior White House legal aide, sharply limiting any governmental attorney–client privilege in criminal investigations of official misconduct while allowing only a narrow personal-privilege carveout for communications transmitted solely as an intermediary between the President and private counsel and rejecting common-interest protection in this context.


In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998)