■ Opinion for the Court filed PER CURIAM.
Opinion dissenting from Part II and concurring in part and dissenting in part from Part III filed by Circuit Judge TATEL.
ORDER
Upon consideration of the motion of President William Jefferson Clinton and the Office of the President, to unseal the sealed portions of this Court’s opinion in
In re: Bruce R. Lindsey (Grand Jury Testimony),
ORDERED, that the redacted portions of this Court’s opinion in
In re: Bruce R. Lindsey (Grand Jury Testimony),
ORDERED, pursuant to this Court’s Local Rule 47.1(c), that the entire opinion of this Court, and the entire opinion concurring and dissenting, in
In re: Bruce R. Lindsey (Grand Jury Testimony),
ORDERED, for the same reason, that the following materials also shall be unsealed:
*1266 1. Motion of the United States of America for Leave to File a Redacted Brief (June 23.1998);
2. Order of this Court to show cause why the briefs in this case should not be unsealed (June 24,1998);
3. Partial Opposition of Appellant William Jefferson Clinton to the Motion of the Office of Independent Counsel for Leave to File a Redacted Brief (June 24,1998);
4. Response of the Office of the President to the Court’s Order to Show Cause and the Office of the Independent Counsel’s Motion for Leave to File a Redacted Brief (June 25, 1998);
5. Response to Order to Show Cause of Appellant William Jefferson Clinton (June 25.1998);
6. Response of the United States of America to June 24,1998, Show Cause Order Regarding Unsealing (June 25,1998);
7. Unredacted Brief of Appellant the Office of the President (June 15,1998);
8. Unredacted Brief Amicus Curiae for the United States Acting Through the Attorney General (June 17,1998);
9. Unredacted Brief of Appellee the United States (June 22,1998);
10. Unredacted Reply Brief of Appellant William Jefferson Clinton (June 25, 1998);
11. Unredacted Reply Brief of Appellant the Office of the President (June 25, 1998);
12. Motion to Unseal, brought by President Clinton and the Office of the President (October 6,1998);
13. Response of the United States of America to Motion to Unseal (October 8, 1998);
14. Response of Amicus Curiae the United States, Acting Through the Attorney General, to Motion to Unseal (October 8, 1998).
In these expedited appeals, the principal question is whether an attorney in the Office of the President, having been called before a federal grand jury, may refuse, on the basis of a government attorney-client privilege, to answer questions about possible criminal conduct by government officials and others. To state the question is to suggest the answer, for the Office of the President is a part of the federal government, consisting of government employees doing government business, and neither legal authority nor policy nor experience suggests that a federal government entity can maintain the ordinary common law attorney-client privilege to withhold information relating to a federal criminal offense. The Supreme Court and this court have held that even the constitutionally based executive privilege for presidential communications fundamental to the operation of the government can be overcome upon a proper showing of need for the evidence in criminal trials and in grand jury proceedings.
See United States v. Nixon,
I.
On January 16, 1998, at the request of the Attorney General, the Division for the Pur
*1267
pose of Appointing Independent Counsels issued an order expanding the prosecutorial jurisdiction of Independent Counsel Kenneth W. Starr. Previously, the main focus of Independent Counsel Starr’s inquiry had been on financial transactions involving President Clinton when he was Governor of Arkansas, known popularly as the Whitewater inquiry. The order now authorized Starr to investigate “whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law” in connection with the civil lawsuit against the President of the United States filed by Paula Jones.
In re Motions of Doto Jones & Co.,
On January 30,1998, the grand jury issued a subpoena to Bruce R. Lindsey, an attorney admitted to practice in Arkansas. Lindsey currently holds two positions: Deputy White House Counsel and Assistant to the President. On February 18, February 19, and March 12,1998, Lindsey appeared before the grand jury and declined to answer certain questions on the ground that the questions represented information protected from disclosure by a government attorney-client privilege applicable to Lindsey’s communications with the President as Deputy White House Counsel, as well as by executive privilege, and by the President’s personal-attorney-client privilege. Lindsey also claimed work product protections related to the attorney-client privileges.
On March 6, 1998, the Independent Counsel moved to compel Lindsey’s testimony. The district court granted that motion on May 4, 1998. The court concluded that the President’s executive privilege claim failed in light of the Independent Counsel’s showing of need and unavailability.
See In re Sealed Case (Espy),
Both the Office of the President and the President in his personal capacity appealed the order granting the motion to compel Lindsey’s testimony, challenging the district court’s construction of both the government attorney-client privilege and President Clinton’s personal attorney-client privilege. The Independent Counsel then petitioned the Supreme Court to review the district court’s decision on those issues, among others, before judgment by this court. On June 4, 1998, the Supreme Coui’t denied
certiorari,
while indicating its expectation that “the Court of Appeals will proceed expeditiously to decide this case.”
United States v. Clinton,
- U.S. -,
II.
The attorney-client privilege protects confidential communications made between clients and them attorneys when the communications are for the purpose of securing legal advice or services.
See In re Sealed Case,
The Office of the President contends that Lindsey’s communications with the President and others in the White House should fall within this privilege both because the President, like any private person, needs to communicate fully and frankly with his legal *1268 advisors, and because the current grand jury investigation may lead to impeachment proceedings, which would require a defense of the President’s official position as head of the executive branch of government, presumably with the assistance of White House Counsel. The Independent Counsel contends that an absolute government attorney-client privilege would be inconsistent with the proper role of the government lawyer and that the President should rely only on his private lawyers for fully confidential counsel.
Federal courts are given the authority to recognize privilege claims by Rule 501 of the Federal Rules of Evidence, which provides that
[ejxcept as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.
Fed.R.Evid. 501. Although Rule 501 manifests a congressional desire to provide the courts with the flexibility to develop rules of privilege on a case-by-case basis,
see Trammel v. United States,
The Supreme Court has not articulated a precise test to apply to the recognition of a privilege, but it has “placed considerable weight upon federal and state precedent,”
In re Sealed Case (Secret Service),
A.
Courts, commentators, and government lawyers have long recognized a government attorney-client privilege in several contexts. Much of the law on this subject has developed in litigation about exemption five of the Freedom of Information Act (“FOIA”).
See
5 U.S.C. § 552(b)(5) (1994). Under that exemption, “intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency” are excused from mandatory disclosure to the public.
Id.; see also
S.Rep. No. 89-813, at 2 (1965) (including within exemption five “documents which would come within the attorney-client privilege if applied to private parties”). We have recognized that “Exemption 5 protects, as a general rule, materials which would be protected under the attorney-client privilege.”
Coastal States Gas Corp. v. Department of Energy,
*1269
Exemption five does not itself create a government attorney-client privilege. Rather, “Congress intended that agencies should not lose the protection traditionally afforded through the evidentiary privileges simply because of the passage of the FOIA.”
Coastal States,
the attorney-client privilege has a proper role to play in exemption five eases.... In order to ensure that a client receives the best possible legal advice, based on a full and frank discussion with his attorney, the attorney-client privilege assures him that confidential communications to his attorney will not be disclosed without his consent. We see no reason why this same protection should not be extended to an agency’s communications with its attorneys under exemption five.
Mead Data Cent., Inc. v. United States Dep’t of Air Force,
Furthermore, the proposed (but never enacted) Federal Rules of Evidence concerning privileges, to which courts have turned as evidence of common law practices,
see, e.g., United States v. Gillock,
The practice of attorneys in the executive branch reflects the common understanding that a government attorney-client privilege functions in at least some contexts. The Office of Legal Counsel in the Department of Justice concluded in 1982 that
[ajlthough the attorney-client privilege traditionally has been recognized in the context of private attorney-client relationships, the privilege also functions to protect communications between government attorneys and client agencies or departments, as evidenced by its inclusion in the FOIA, much as it operates to protect attorney-client communications in the private sector.
Theodore B. Olsen, Assistant Attorney General, Office of Legal Counsel, Confidentiality of the Attorney General’s Communications in Counseling the President, 6 Op. Off. Legal Counsel 481, 495 (1982). The Office of Legal Counsel also concluded that when government attorneys stand in the shoes of private counsel, representing federal employees sued in their individual capacities, confidential communications between attorney and client are privileged. See Antonin Sealia, Assistant Attorney General, Office of Legal Counsel, Disclosure of Confidential Information Received by U.S. Attorney in the Course of Representing a Federal Employee (Nov. 30, 1976); Ralph W. Tarr, Acting Assistant At *1270 torney General, Office of Legal Counsel, Duty of Government Lawyer Upon Receipt of Incriminating Information in the Course of an Attorney-Client Relationship with Another Government Employee (Mar. 29,1985); see also 28 C.F.R. § 50.15(a)(3) (1998).
B.
Recognizing that a government attorney-client privilege exists is one thing. Finding that the Office of the President is entitled to assert it here is quite another.
It is settled law that the party claiming the privilege bears the burden of proving that the communications are protected. As oft-cited definitions of the privilege make clear, only communications that seek “legal advice” from “a professional legal adviser in his capacity as such” are protected.
See
8 John Henky Wigmore, Evidence in TRIALS at Common Law § 2292, at 554 (McNaughton rev.1961). Or, in a formulation we have adopted, the privilege applies only if the person to whom the communication was made is “a member of the bar of a court” who “in connection with th[e] communication is acting as a lawyer” and the communication was made “for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding.”
In re Sealed Case,
On the record before us, it seems likely that at least some of the conversations for which Lindsey asserted government attorney-client privilege did not come within the formulation just quoted. In its original opposition to the Independent Counsel’s motion to compel Lindsey’s testimony, the Office of the President claimed the privilege for conversations related to “providing legal advice on the questions whether the Office of the President should invoke its testimonial privileges, including the attorney-client and presidential communications privileges” and “possible impeachment proceedings before the House Judiciary Committee.” White House Mem. in Opp’n to OIC’s Mot. to Compel at 19. Both of these subjects arose from the expanded jurisdiction of the Independent Counsel, which did not become public until January 20, 1998. Before then, any legal advice Lindsey rendered in connection with Jones v. Clinton, a lawsuit involving President Clinton in his personal capacity, likely could not have been covered by government attorney-client privilege. 2 Apparently realizing as much, the Office of the President added a third category in a supplemental filing: “Mr. Lindsey has also rendered advice to the Office of the President on how best to prevent other litigation in which the President is involved from hampering the Presidency’s fulfillment of its institutional duties.” White House Mem. Concerning President Clinton’s Supplemental Filing in Supp. of Opp’n to Mot. to Compel at 2. We take notice that in describing this third subject, the word “advice” is not preceded by the word “legal.” According to the Restatement, “consultation with one admitted to the bar but not in that other person’s role as lawyer is not protected.” Restatement § 122 cmt. c. “[Wjhere one consults an attorney not as a lawyer but as a friend or as a business adviser or banker, or negotiator ... the consultation is not professional nor the statement privileged.” 1 McCormick on Evidence § 88, at 322-24 (4th ed.1992) (footnotes omitted). Thus Lindsey’s advice on political, strategic, or policy issues, valuable as it may have been, would not be shielded from disclosure by the attorney-client privilege.
As for conversations after January 20th, the Office of the President must “present the underlying facts demonstrating the existence of the. privilege” in order to carry its burden.
See FTC v. Shaffner,
With regard to most of the communications that were the subject of questions before the grand jury, it does not appear to us that any such showing was made in the grand jury by Lindsey or in the district court by the Office of the President in the proceedings leading to the order to compel his testimony. This may be attributable to the parties’ focus in the district court. The arguments on both sides centered on whether any attorney-client privilege protected the conversations about which Lindsey was asked, not on whether — if the privilege could be invoked — the conversations were covered by it. In light of this, and in .view of the Administration’s abandonment of its executive privilege claim, Lindsey would have to return to the grand jury no matter how we ruled on the government attorney-client privilege claim.
There is, however, no good reason for withholding decision on the issues now before us. We have little doubt that, at least one of Lindsey’s conversations subject to grand jury questioning “concerned the seeking of legal advice” and was between President Clinton and Lindsey or between others in the White House and Lindsey while Lindsey was “acting in his professional capacity” as an attorney. See id. Before the grand jury, Lindsey spoke of many instances when legal advice would clearly have been appropriate, see Grand Jury Tr., Feb. 18, 1998, at 52-53, 90; Grand Jury Tr., Feb. 19, 1998, at 54-55, 81-84, and he specifically affirmed that there were times when White House staff members came to him in his role as a member of the White House Counsel’s Office, see id. at 64-74. Furthermore, there were times when Lindsey only invoked executive privilege, see, e.g., Grand Jury Tr., Feb. 18, 1998, at 115-16, at least implying that he invoked attorney-client privilege only when he thought it appropriate to do so. The issue whether the government attorney-client privilege could be invoked in these circumstances is therefore ripe for decision.
Moreover, the case has been fully briefed and argued. The Supreme Court has asked us to expedite our disposition of these appeals. Sending this case back for still another round of grand jury testimony, assertions of privileges and immunities, a district court judgment, and then another appeal would be inconsistent with the Supreme' Court’s request and would do nothing but prolong the grand jury’s investigation. The parties, we believe, are entitled now to a ruling to govern Lindsey’s future grand jury appearance.
We therefore turn to the question whether an attorney-client privilege permits a government lawyer to withhold from a grand jury information relating to the commission of possible crimes by government officials and others. Although the cases decided under FOIA recognize a government attorney-client privilege that is rather absolute in civil litigation, those cases do not necessarily control the application of the privilege here. The grand jury, a constitutional body established in the Bill of Rights, “belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people,”
United States v. Williams,
The question whether a government attorney-client privilege applies in the federal grand jury context is one of first impression in this circuit, and the parties dispute the import of the lack of binding authority. The Office of the President contends that, upon recognizing a government attorney-client privilege, the court should find an
exception
in the grand jury context only if practice and policy require. To the contrary, the Independent Counsel contends, in essence, that the justification for any
extension
of a government attorney-client privilege to this context needs to be clear. These differences in approach are not simply semantical: they represent different versions of what is the status quo. To argue about an “exception” presupposes that the privilege otherwise applies in the federal grand jury context; to argue about an “extension” presupposes the opposite. In
Swidler & Berlin,
the Supreme Court considered whether, as the Independent Counsel contended, it should create an exception to the personal attorney-client privilege allowing disclosure of confidences after the client’s death.
See Swidler & Berlin,
at ---,
In the instant case, by contrast, there is no such existing body of caselaw upon which to rely and no clear principle that the government attorney-client privilege has as broad a scope as its personal counterpart. Because the “attorney-client privilege must be ‘strictly confined within the narrowest possible limits consistent with the logic of its principle,’ ”
In re Sealed Case,
When an executive branch attorney is called before a federal grand jury to give evidence about alleged crimes within the executive branch, reason and experience, duty, and tradition dictate that the attorney shall provide that evidence. With respect to investigations of federal criminal offenses, and especially offenses committed by those in government, government attorneys stand in a far different position from members of the private bar. Their duty is not to defend clients against criminal charges and it is not to protect wrongdoers from public exposure. The constitutional responsibility of the President, and all members of the Executive Branch, is to “take Care that the Laws be faithfully executed.” U.S. Const, art. II, § 3. Investigation and prosecution of federal crimes is one of the most important and essential functions within that constitutional responsibility. Each of our Presidents has, in the words of the Constitution, sworn that he “will faithfully execute the Office of President of the United States, and will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States.” Id. art. II, § 1, cl. 8. And for more *1273 than two hundred years each officer of the Executive Branch has been bound by oath or affirmation to do the same. See id. art. VI, cl. 3; see also 28 U.S.C. § 544 (1994). This is a solemn undertaking, a binding of the person to the cause of constitutional government, an expression of the individual’s allegiance to the principles embodied in that document. Unlike a private practitioner, the loyalties of a government lawyer therefore cannot and must not lie solely with his or her client agency. 3
The oath’s significance is underscored by other evocations of the ethical duties of government lawyers. 4 The Professional Ethics Committee of the Federal Bar Association has described the public trust of the federally employed lawyer as follows:
[T]he government, over-all and in each of its parts, is responsible to the people in our democracy with its representative form of government. Each part of the government has the obligation of carrying out, in the public interest, its assigned responsibility in a manner consistent with the Constitution, and the applicable laws and regulations. In contrast, the private practitioner represents the client’s personal or private interest_ [W]e do not suggest, however, that the public is the client as the client concept is usually understood. It is to say that the lawyer’s employment requires him to observe in the performance of his professional responsibility the public interest sought to be served by the governmental organization of which he is a part.
Federal Bar Association Ethics Committee, The Government Client and Confidentiality: Opinion 73-1, 32 Fed. B.J. 71, 72 (1973). Indeed, before an attorney in the Justice Department can step into the shoes of private counsel to represent a federal employee sued in his or her individual capacity, the Attorney General must determine whether the representation would be in the interest of the United States. See 28 C.F.R. § 50.15(a). The obligation of a government lawyer to uphold the public trust reposed in him or her strongly militates against allowing the client agency to invoke a privilege to prevent the lawyer from providing evidence of the possible commission of criminal offenses within the government. As Judge Weinstein put it, “[i]f there is wrongdoing in government, it must be exposed.... [The government lawyer’s] duty to the people, the law, and his own conscience requires disclosure.... ” Jack B. Weinstein, Some Ethical and Political Problems of a Government Attorney, 18 Maine L.Rev. 155, 160 (1966).
This view of the proper allegiance of the government lawyer is complemented by the public’s interest in uncovering illegality among its elected and appointed officials. While the President’s constitutionally established role as superintendent of law enforcement provides one protection against wrongdoing by federal government officials,
see United States v. Valenzuela-Bernal,
*1274 [a] popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.
Letter from James Madison to W.T. Barry (Aug. 4, 1822),
in
9 The WRITINGS of James Madison 103 (Gaillard Hunt ed., 1910). This court has accordingly recognized that “openness in government has always been thought crucial to ensuring that the people remain in control of their government.”
In re Sealed Case (Espy),
Examination of the practice of government attorneys further supports the conclusion that a government attorney, even one holding the title Deputy White House Counsel, may not assert an attorney-client privilege before a federal grand jury if communications with the client contain information pertinent to possible criminal violations. The Office of the President has traditionally adhered to the precepts of 28 U.S.C. § 535(b), which provides that
[a]ny information ... received in a department or agency of the executive branch of the Government relating to violations of title 18 involving Government officers and employees shall be expeditiously reported to the Attorney General.
28 U.S.C. § 535(b) (1994). We need not decide whether section 535(b) alone requires White House Counsel to testify before a grand jury.
6
The statute does not clearly apply to the Office of the President. The Office is neither a “department,” as that term is defined by the statute,
see
5 U.S.C. § 101 (1994); 28 U.S.C. § 451 (1994);
Haddon v. Walters,
Furthermore, government officials holding top legal positions have concluded, in light of section 535(b), that White House lawyers cannot keep evidence of crimes committed by government officials to themselves. In a *1275 speech delivered after the Kissinger FOIA case was handed down, Lloyd Cutler, who served as White House Counsel in the Carter and Clinton Administrations, discussed the “rale of making it your duty, if you’re a Government official as we as lawyers are, a statutory duty to report to the Attorney General any evidence you run into of a possible violation of a criminal statute.” Lloyd N. Cutler, The Role of the Counsel to the President of the United States, 35 Record of the Ass’n of the Bar of the City of New York No. 8, at 470, 472 (1980). Accordingly, “[w]hen you hear of a charge and you talk to someone in the White House ... about some allegation of misconduct, almost the first thing you have to say is, ‘I really want to know about this, but anything you tell me I’ll have to report to the Attorney General.’” Id. Similarly, during the Nixon administration, Solicitor General Robert H. Bork told an administration official who invited him to join the President’s legal defense team: “A government attorney is sworn to uphold the Constitution. If I come across evidence that is bad for the President, I’ll have to turn it over. I won’t be able to sit on it like a private defense attorney.” A Conversation with Robert Bork, D.C. Bar Rep., Dec. 1997-Jan.1998, at 9.
The Clinton Administration itself endorsed this view as recently as a year ago. In the proceedings leading to the Supreme Court’s denial of certiorari with regard to the Eighth Circuit’s decision in
In re Grand Jury Subpoena Duces. Tecum,
the Office of the President assured the Supreme Court that it “embraces the principles embodied in Section 535(b)” and acknowledged that “the Office of the President has a duty, recognized in official policy and practice, to turn over evidence of the ciime.” Reply Brief for Office of the President at 7,
Office of the President v. Office of Independent Counsel,
— U.S. -,
We are not aware of any previous deviation from this understanding of the role of government counsel. We know that Nixon White House Counsel Fred Buzhardt testified before the Watergate grand jury without invoking attorney-client privilege, although not much may be made of this. 7 See Anthony Ripley, Milk Producers’ Group Fined $5,000 for Nixon Gifts, N.Y. Times, May 7, 1974, at 38. On the other hand, the Office of the President points out that C. Boyden Gray, White House Counsel during the Bush Administration, and his deputy, John Schmitz, refused to be interviewed by the Independent Counsel investigating the Iran-Contra affair and only produced documents subject to an agreement that “any privilege against disclosure ... including the attorney-client privilege” was not waived. 1 Law-renoe E. Walsh, Final Report of the Independent Counsel for Iran/Contra Matters 478-79 & n.52 (1993). However, the Independent Counsel in that investigation had not subpoenaed Gray or Schmitz to testify before a grand jury, and there is no indication that the information sought from them constituted evidence of any criminal offense. Independent Counsel Walsh apparently sought to question these individuals merely to complete his final report. See id. In any event, even outside the grand jury context, the general practice of government counsel has been to cooperate with the investigations of independent counsels. For example, Peter Wallison, White House Counsel under President Reagan, produced his diary for the Iran-Contra investigation and cooperated in other ways. *1276 See id. at 44, 470 n. 137, 517, 520. Other government attorneys both produced documents and agreed to be interviewed for that investigation. See id. at 346-48, 366-68, 536 & nn.116-17, 537.
The Office of the President asserts two principal contributions to the public good that would come from a government attorney’s withholding evidence from a grand jury on the basis of an attorney-client privilege. First, it maintains that the values of candor and frank communications that the privilege embodies in every context would apply to Lindsey’s communications with the President and others in the White House. Government officials, the Office of the President claims, need accurate advice from government attorneys as much as private individuals do, but they will be inclined to discuss their legal problems honestly with their attorneys only if they know that their communications will be confidential.
We may assume that if the government attorney-client privilege does not apply in certain contexts this may chill some communications between government officials and government lawyers. Even so, government officials will still enjoy the benefit of fully confidential communications with their attorneys unless the communications reveal information relating to possible criminal wrongdoing. And although the privacy of these communications may not be absolute before the grand jury, the Supreme Court has not been troubled by the potential chill on executive communications due to the qualified nature of executive privilege.
8
Compare Nixon,
Moreover', nothing prevents government officials who seek completely confidential communications with attorneys from consulting personal counsel. The President has retained several private lawyers, and he is entitled to engage in the completely confidential communications with those lawyers befitting an attorney and a client in a private relationship. See infra Part III.
The Office of the President contends that White House Counsel’s role in preparing for any future impeachment proceedings alters the policy analysis. 9 The Ethics in Government Act requires the Independent Counsel to “advise the House of Representatives of any substantial and credible information ... that may constitute grounds for an impeachment.” 28 U.S.C. § 595(c) (1994). In November 1997, a Congressman introduced a resolution in the House of Representatives calling for an inquiry into possible grounds for impeachment of the President. See H.R. Res. 304, 105th Cong. (1997). Thus, to the extent that impeachment proceedings may be on the horizon, the Office of the President contends that White House Counsel must be *1277 given maximum protection against grand jury inquiries regarding their efforts to protect the Office of the President, and the President in his personal capacity, against impeachment. Additionally, the Office of the President notes that the Independent Counsel serves as a conduit to Congress for information concerning grounds for impeachment obtained by the grand jury, and, consequently, an exception to the attorney-client privilege before the grand jury will effectively abrogate any absolute' privilege those communications might otherwise enjoy in future congressional investigations and impeachment hearings.
Although the Independent Counsel and the Office of the President agree that White House Counsel can represent the President in the impeachment process, the precise contours of Counsel’s role are far from settled.
10
In any event, no matter what the role should be, impeachment is fundamentally a
political
exercise.
See
The Federalist No. 65 (Alexander Hamilton); Joseph Story, Commentaries on the Constitution § 764, at 559 (5th ed.1905). Impeachment proceedings in the House of Representatives cannot be analogized to traditional legal processes and even the procedures used by the Senate in “trying” an impeachment may not be like those in a judicial trial.
See (Walter) Nixon v. United States,
Nor is our conclusion altered by the Office of the President’s concern over the possibility that Independent Counsel will convey otherwise privileged grand jury testimony of White House Counsel to Congress.
11
Cf.
Fed.R.Crim.P. 6(e). First, no one can say with certainty the extent to which a privilege would generally protect a White House Counsel from testifying at a congressional hearing. The issue is not presently before
*1278
the court.
12
See Nixon,
The Supreme Court’s recognition in
United States v. Nixon of
a qualified privilege for executive communications severely undercuts the argument of the Office of the President regarding the scope of the government attorney-client privilege. A President often has private conversations with his Vice President or his Cabinet Secretaries or other members of the Administration who are not lawyers or who are lawyers, but are not providing legal services. The advice these officials give the President is of vital importance to the security and prosperity of the nation, and to the President’s discharge of his constitutional duties. Yet upon a proper showing, such conversations must be revealed in federal criminal proceedings.
See Nixon,
The district court held that a government attorney-client privilege existed and was applicable to grand jury proceedings, but could be overcome, as could an applicable executive privilege, upon a showing of need and unavailability elsewhere by the Independent Counsel. While we conclude that an attorney-client privilege may not be asserted by Lindsey to avoid responding to the grand jury' if he possesses information relating to possible criminal violations, he continues to be covered by the executive privilege to the same extent as the President’s other advisers. Our analysis, in addition to having the advantages mentioned above, avoids the application of balancing tests to the attorney-client privilege — a practice recently criticized by the Supreme Court.
See Swidler & Berlin,
at-,
In sum, 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.
III.
The Independent Counsel does not contest that the President is entitled in his personal capacity to the same privileges as any person, and thus that he receives the full protection of the attorney-client and work product privileges in his dealings with personal counsel. Although, according to the President’s brief, Lindsey has not served as the President’s private counsel since 1993, the President maintains under two theories, each rejected by the district court, that some information that Lindsey has obtained during his tenure as a Deputy White House Counsel may nonetheless be protected under the President’s personal attorney-client and work product privileges. First, under the “intermediary” doctrine, the President contends that his personal attorney-client privilege covers those instances when Lindsey acted as his agent to assist him in conveying *1279 information and instructions to his private counsel and securing information and advice in return. Second, under the “common interest” doctrine, the President contends that his attorney-client privilege covers instances in which he and his private counsel conferred with Lindsey about matters in which the President in his personal capacity had an overlapping concern with Lindsey’s client— the President in his official capacity. Although both these contentions seem at first to conflict with the rationales underlying our conclusion that there is no government attorney-client privilege before a federal grand jury, in light of the deference due to the President about how best to maintain effective communication with his private counsel, we agree that Lindsey can act as an intermediary. However, because Lindsey is a government official, the common interest doctrine cannot apply to shield evidence of possible criminal misconduct from the grand jury-
A.
The President first contends that his. personal attorney-client privilege allows Lindsey to refuse to disclose information obtained while serving as an intermediary between the President and his private counsel. Although the district court recognized that the attorney-client privilege sometimes covers communications between an attorney and a client made through an agent, see Restatement § 120, the court ruled that the privilege did not cover communications made through Lindsey for three reasons: first, it was unpersuaded that the President needed to use an intermediary; second, it found that Lindsey was not actually used as an intermediary; and third, it was unsure that the use of a government attorney as an intermediary would ever be proper. We are satisfied that no greater showing of need was required for the President to use Lindsey as an intermediary and, thus, information Lindsey may have learned when he was, in fact, acting merely as an intermediary falls within the President’s personal attorney-client privilege.
Although the district court found (and the Independent Counsel does not contest) both that Lindsey served as the President’s agent and that the official duties of the President may make him unavailable to his private counsel, it gave little credence to the insistence of Robert S. Bennett, one of the President’s personal attorneys in the Jones litigation, that Lindsey, one of the President’s closest advisers and his common travel companion, often provided the most expeditious way to contact the President. The district court demurred:
It is not clear to the Court why Bennett could not also call the President at a convenient time if Lindsey could do so or why someone at the White House could not connect them so that they could speak to each other.... In the situation described to the Court, it is unclear why Lindsey was a necessary intermediary.
The district court placed considerable weight in a concession by another of the President’s private counsel that the attorneys representing him in the Whitewater matters had not to that point needed to use Lindsey as an intermediary, although that counsel emphasized that, unlike counsel in the Jones litigation, her firm had not to that point “had the immediacy of the civil litigation” and in such an eventuality might later need Lindsey’s intermediary services.
The parties dispute whether the use of an agent for communication between the attorney and the client must be “reasonably necessary” in order for that agent to fall within the attorney-client privilege, as the Independent Counsel urges, or whether the privilege can cover any agent used for securing legal advice regardless of the client’s need for the agent, as the President contends.
13
But even if we assume that the Independent Counsel is correct, the district court erred in ruling that the President’s use of Lindsey as an intermediary was not reasonably necessary. In applying the standard of
“reasonable
necessity,” one. must necessarily take into account the chent’s circumstances and the ob-
*1280
staeles preventing direct communication with the attorney. What is reasonable to expect of an ordinary client may not be reasonable to expect of the President of the United States. Although the Independent Counsel emphasizes that the typical case in which the intermediary doctrine has been held to apply involves the client’s fundamental inability to communicate without an intermediary rather than the client’s busy schedule and general inaccessibility,
see, e.g., Hendrick v. Avis Rent A Car Sys.,
There is a further question, however, when if ever Lindsey actually was acting as an intermediary. The district court found that regardless of whether an intermediary was necessary, Lindsey went beyond merely transmitting information to “consulting with Bennett regarding litigation strategy and describing his past representation of President Clinton to Bennett.” Relying on
United States v. Kovel,
no significant difference between a case where the attorney sends a client speaking a foreign language to an interpreter to make a literal translation of the client’s story ... and a [case] where the attorney, ignorant of the foreign language, sends the client to a non-lawyer proficient in it, with instructions to interview the client on the attorney’s behalf and then render his own summary of the situation, perhaps drawing on his own knowledge in the process, so that the attorney can give the client proper legal advice.
Id. at 921. Thus, the President contends that Lindsey did not overstep his role as an intermediary when adding insight and information to the communications between the President and his private counsel.
In considering whether a client’s communication with his or her lawyer through an agent is privileged under the intermediary doctrine, the “critical factor” is “that the communication be made ‘in confidence for the purpose of obtaining legal advice from the lawyer.’ ”
Linde Thomson,
It is true that courts have held the intermediary doctrine applicable to agents who have added value to attorney-client communications,
see, e.g., United States v. Judson,
The record does not show, however, that Lindsey never acted as a mere intermediary. In a declaration filed in the district court, Lindsey described his role as an intermediary thus: “Typically, when the President’s private lawyers need information in connection with the Jones lawsuit, they telephone me with questions for the President. I present questions to the President at opportune times, and later relay the President’s answers back to private counsel.” That Lindsey may have on occasion consulted with Bennett on legal strategy does not mean that Lindsey could not claim the protection of the intermediary doctrine for those instances in which he did act as an intermediary. As the district court properly acknowledged, “most of Lindsey’s assistance was not as an intermediary relaying messages between the President’s private attorneys and the President himself.” Upon remand, the district court should address when, if ever, Lindsey was acting as a true intermediary and allow him to claim the President’s attorney-client privilege as appropriate.
Given the concerns that led us to conclude that a Deputy White House Counsel cannot rely on a government attorney-client privilege to shield evidence from the grand jury, the Independent Counsel insists that it would be illogical for the court ever to allow the President’s personal attorney-client privilege to shield government attorneys. While most parties could not expect that the use of a government official as an intermediary would provide an effective shield before a federal grand jury, the President is not just any party. Although he cannot use the govern
*1282
ment attorney-client privilege to withhold his conversations with advisors from the grand jury,
see supra
section II.B, in order to have full and meaningful access to confidential counsel from his private attorneys, he must rely on aides. As one of his private attorneys told the district court, it is unrealistic to expect that the President can use a private party as an intermediary every time one is necessary: “the private individual can’t just hop onto Air Force One and go off to Africa with the President and attend meetings and be in sessions and always be by his side the way a governmental official properly is.” Such an arrangement would not only be inconvenient, but might also pose security risks.
Cf. In re Sealed Case (Secret Service),
B.
The President also contends that Lindsey is within the protection of his personal attorney-client privilege under the “common interest” doctrine. As a usual rule, disclosure of attorney-client or work product confidences to third parties waives the protection of the relevant privileges; however, when the third party is a lawyer whose client shares an overlapping “common interest” with the primary client, the privileges may remain intact.
See In re Sealed Case, 29
F.3d 715, 719 (D.C.Cir.1994);
United States v. AT&T,
Although it has long been recognized that the President in his private persona shares some areas of common interest with the Office of the President,
see, e.g., United States v. Burr,
As we have established, government officials have responsibilities not to withhold evidence relating to criminal offenses from the grand jury. See supra section II.B. The President cannot bring Lindsey within his *1283 personal attorney-client privilege as he could a private citizen, for Lindsey is in a fundamentally different position. Unlike in his role as an intermediary, see supra section III.A, Lindsey necessarily acts as a government attorney functioning in his official capacity as Deputy White House Counsel in those instances when the common interest doctrine might apply, just as in those instances when the government attorney-client privilege might apply. His obligation not to withhold relevant information acquired as a government attorney remains the same regardless of whether he acquired the information directly from the President or from the President’s personal counsel. Thus, his status before the federal grand jury does not allow him to withhold evidence obtained in his official role under either the government attorney-client privilege or the President’s personal attorney-client privilege applied through the common interest doctrine.
If the President wishes to discuss matters jointly between his private counsel and his official counsel, he must do so cognizant of the differing responsibilities of the two counsel and tailor his communications appropriately; undoubtedly, his counsel are alert to this need as well. Although his personal counsel remain fully protected by the absolute attorney-client privilege, a Deputy White House Counsel like Lindsey may not assert an absolute privilege in the face of a grand jury subpoena, but only the more limited protection of executive privilege. Consequently, although the President in his personal capacity has at least some areas of common interest with the Office of the Presidency, and although there may thus be reason for official and personal counsel to confer, the overarching duties of Lindsey in his role as a government attorney prevent him from withholding information about possible criminal misconduct from the grand jury.
IV.
Accordingly, for the reasons stated in this opinion, we affirm in part and reverse in part.
In accordance with the Supreme Court’s expectation that “the Court of Appeals will proceed expeditiously to decide this case,”
Clinton,
at -,
It is so ordered.
TATEL, Circuit Judge, dissenting from Part II and concurring in part and dissenting in part from Part III.
The attorney-client privilege protects confidential communication between clients and their lawyers, whether those lawyers work for the private sector or for government. Although I have no doubt that government lawyers working in executive departments and agencies enjoy a reduced privilege in the face of grand jury subpoenas, I remain unconvinced that either “reason” or “experience” (the tools of Rule 501) justifies this court’s abrogation of the attorney-client privilege for lawyers serving the Presidency. This court’s far-reaching ruling, moreover, may have been unnecessary to give this grand jury access to Bruce Lindsey’s communications with the President, for on this record it is not clear whether those communications involved official legal advice that would be protected by the attorney-client privilege. Before limiting the attorney-client privilege not just for this President, but for all Presidents to come, the court should have first remanded this case to the district court to recall Lindsey to the grand jury to determine the precise nature of his communications with the President.
I
My colleagues and I have no disagreement concerning personal legal advice Lindsey may have given the President. We agree, and the White House concedes, that the official attorney-client privilege does not protect such communications, for as a White House employee Lindsey had no authority to provide such advice. Nor do we disagree about political advice given to the President by advisers who happen to be lawyers. Such advice is protected, if at all, by the executive privilege alone. Our disagreement centers solely on whether a grand jury can pierce the attorney-client privilege with respect to offi- *1284 eial legal advice that the Office of White House Counsel gives a sitting President.
One of the oldest privileges at common law and “ ‘rooted in the imperative need for confidence and trust,’ ”
Jaffee v. Redmond,
Government attorneys enjoy the attorney-client privilege in order to provide reliable legal advice to their governmental clients. “Unless applicable law otherwise provides, the attorney-client privilege extends to a communication of a governmental organization ... and of an individual officer ... of a governmental organization.” Restatement (THIRD) OF THE LAW GOVERNING LAWYERS (“Restatement”) § 124 (Proposed Final Draft No. 1, 1996);
see also
Proposed Fed. R. Evid. 503(a)(1),
reprinted in
This court now holds that for all government attorneys, including those advising a President, the attorney-client privilege dissolves in the face of a grand jury subpoena. According to the court, its new rule “avoids the application of balancing tests to the attorney-client privilege — a practice recently criticized by the Supreme Court.” Maj. Op. at 1278. But whether a court abrogates the privilege by applying the balancing test rejected in
Swidler,
or by the rule the court adopts today, the chilling effect is precisely the same. Clients, in this case Presidents of the United States, will avoid confiding in their lawyers because they can never know whether the information they share, no matter how innocent, might some day become “pertinent to possible criminal violations,”
id.
at 1274. Rarely will White House counsel possess cold, hard facts about presidential wrongdoing that would create a strong public interest in disclosure, yet the very possibility that the confidence will be breached will chill communications.
See Swidler,
at -- -,
Unlike
Jaffee,
As one of its reasons for abrogating the presidential attorney-client privilege, the court says that legal advice is no different from the advice a President receives from other advisers — advice protected only by executive privilege. Maj. Op. at 1277-78. I think the court seriously underestimates the independent role and value of the attorney-client privilege. Unlike the executive privilege — a broad, constitutionally derived privilege that protects frank debate between President and advisers,
see United States v. Nixon,
The court also cites 28 U.S.C. § 535(b). Although that statute generally supports qualifying — though not abrogating — the attorney-client privilege for government attorneys working in executive departments and agencies, the court acknowledges, as the Attorney General has told us in her
amicus
brief, that section 535(b) does not apply to the Office of the President. The court cites several statements, including former White House Counsel Lloyd Cutler’s speech to the New York Bar, the White House Travel Office Management Review, and the Administration’s
certiorari
petition in
In re Grand Jury Subpoena Duces Tecum,
The court refers to actions of a few previous White House counsel: Fred Buzhardt testified voluntarily before the Watergate grand jury; Peter Wallison turned over his diaries to the Iran-Contra investigation; and C. Boyden Gray and his deputy refused to be interviewed by that same Iran-Contra Independent Counsel. See Maj. Op. at 1275-76. In my view, these limited and contradictory examples reveal nothing about the standard we should apply where, as here, a President of the United States actually invokes the attorney-client privilege in the face of a grand jury subpoena.
Acknowledging the facial inapplicability of section 535(b) to the Office of the President, *1286 the court relies on the government lawyer’s oath of office for the proposition that White House counsel cannot have a traditional attorney-client relationship with the President. But all lawyers, whether they work within the government or the private sector, take an oath to uphold the Constitution of the United States. In order to practice before this court, for example, attorneys must promise to “demean [themselves] ... according to law ... [and]. support the Constitution of the United States.” Application for Admission to Practice (U.S. Court of Appeals for the D.C. Circuit). No one would suggest that this oath abrogates a client’s privilege in the face of a grand jury subpoena.
This court’s opinion, moreover, nowhere accounts for the unique nature of the Presidency, its unique need for confidential legal advice, or the possible consequences of abrogating the attorney-client privilege for a President’s ability to obtain such advice. Elected, head of the Executive Branch, Commander-in-Chief, head of State, and removable only by impeachment, the President is not just “a part of the federal government, consisting of government employees doing government business.” Maj. Op. at 1266. As Justice Robert H. Jackson observed in the steel seizure case, the Presidency concentrates executive authority “in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear.”
Youngstown Sheet & Tube Co. v. Sawyer,
The Constitution vests the President with unique, and uniquely consequential, powers and responsibilities. The Nation’s “executive Power” is vested in him alone. U.S. Const. Art. II, § 1. In addition to his significant and diverse domestic and foreign affairs responsibilities, he is specifically required to adhere to and follow the law, both in his oath of office (Art. II, § 1, Cl. 8) and in the requirement that “he shall take Care that the Laws be faithfully executed.” Art. II, § 3. To fulfill his manifold duties and functions, the President must have access to legal advice that is frank, fully informed, and confidential. Because of the magnitude of the Nation’s interest in facilitating the President’s conduct of his office in accordance with law, the President’s pressing need for effective legal advice knows no parallel in government.
Amicus
Br. at 24. By lumping the President together with tax collectors, passport application processors, and all other executive branch employees — even cabinet officers— the court bypasses the reasoned “ ‘case-by-case’” analysis demanded by Rule 501.
Jaf-fee,
A President’s need for confidential legal advice may “know[] no parallel in government” for another reason. Because the Presidency is tied so tightly to the persona of its occupant, and because of what
Fitzgerald
referred to as the Presidency’s increased “vulnerability,” stemming from “the visibility of [the] office and the effect of [the President’s] actions on countless people,”
Fitzgerald,
Preserving the official presidential attorney-client privilege would not place the President above the law, as the Independent Counsel implies. To begin with, by enabling clients — including Presidents — to be candid with their lawyers and lawyers to advise clients confidentially, the attorney-client privilege promotes compliance with the law.
See Upjohn,
To be sure, a properly exercised attorney-client privilege may deny a grand jury access to information,
see Swidler,
at-,
*1288 II
During Lindsey’s several grand jury appearances he invoked both executive and attorney-client privileges, often with respect to the same questions. .Now that the White House has dropped the executive privilege issue, much of that information may be available to the Independent Counsel, and we have no way of knowing which questions, if any, Lindsey would continue to decline to answer. Even more fundamental, Lindsey’s affidavit, his testimony and the affidavit of White House Counsel Charles F.C. Ruff suggest that the communications between Lindsey and the President regarding the Monica Lewinsky and Paula Jones matters may have involved political and policy discussions, not legal advice. To be sure, the affidavits and Lindsey’s testimony refer to advice about legal topics, such as invoking privileges and preparing for impeachment. But nowhere do they demonstrate that Lindsey rendered that advice in his capacity as a lawyer, i.e., that “the lawyer’s professional skill and training would have value in the matter.” Restatement § 122 cmt. b. A conversation is not privileged merely because the President asked Lindsey a question about a nominally legal matter or in his capacity as White House Counsel staff. For example, if Lindsey advised the President about the political implications of invoking executive privilege, that communication would not be privileged; if he discussed the availability of the privilege as a legal matter, the conversation would be protected.
Distinguishing between Lindsey’s legal and non-legal advice becomes even more difficult because not only does Lindsey wear two hats, one legal (Deputy White House Counsel) and one non-legal (Special Assistant to the President), but the Office of White House Counsel has historically performed many non-legal functions, such as giving policy advice, writing speeches, and performing various political tasks.
See
Stephen Hess, Organizing The Presidency 36, 43, 84 (1988); Lloyd N. Cutler,
The Role of the Counsel to the President of the United States,
35 Record of the Association of The Bar of The City of New York 470, 472-76 (1980); Jeremy Rabkin,
At the President’s Side: The Role of the White House Counsel in Constitutional Policy,
Law & Contemp. Probs., Autumn 1993, at 63, 65-76. When an advisor serves dual roles, the party invoking the privilege bears a particularly heavy burden of demonstrating that the services provided were in fact legal.
See, e.g., Texaco Puerto Rico, Inc. v. Department of Consumer Affairs,
Accordingly, before abrogating the official attorney-client privilege for all future Presidents, this court should have remanded to the district court to allow the Independent Counsel to recall Lindsey to the grand jury to determine whether, with respect to each question that he declines to answer, he can demonstrate the elements of the attorney-client privilege — -namely, that each communication was made between privileged persons in confidence “for the purpose of obtaining or providing legal assistance for the client,” Restatement § 118.
See United States v. Kovel,
I do not consider the Supreme Court’s expectation that we proceed expeditiously to be inconsistent with our obligation to engage in fully reasoned and informed decision-making. The importance to the Presidency of effective legal advice requires no less. Moreover, according to the Independent Counsel, the grand jury is exploring whether obstruction of justice, perjury, witness intimidation, and other crimes were committed in January 1998. See 18 U.S.C. § 3282 (establishing five-year statute of limitations for non-capital federal crimes). We thus have time to determine whether we need to resolve this important question and, if so, to ensure that we do so on the basis of a fuller, more useful record. If the Independent Counsel needs to report to Congress more expeditiously, he is free to do so.
Ill
I concur in Part III.A of the com’t’s opinion. For the reasons stated in Parts I and II of my published dissent, I cannot join Part III.B. Since I believe that the Presidency’s confidential attorney-client privilege covers communications with White House counsel, I would hold that the common interest doctrine protects communications between White House counsel and a President’s private counsel where the attorneys share an overlapping common interest.
Notes
. Charles F.C. Ruff, the current While House Counsel, stated in an affidavit that he provides legal advice to the President regarding a wide variety of matters relating to his constitutional, statutory, ceremonial, and other official duties. He also provides legal advice to the President *1269 regarding the effective functioning of the Executive Branch. Lindsey’s affidavit stated that the "White House Counsel's Office provides confidential counsel to the President in his official capacity, to the White House as an institution, and to senior advisors about legal matters that affect the White House's interests, including investigative matters. To this end, the Counsel's Office, in which I serve as Deputy, receives confidential communications from individuals about matters of institutional concern.”
. We do not foreclose a showing by Lindsey when he appears again before the grand jury that prior to January 20, 1998, he gave legal advice as Deputy White House Counsel in regard to how private litigation involving the President was affecting the Office of the President.
. We recognize, as our dissenting colleague emphasizes, that every lawyer must take an oath to enter the bar of any court. But even after entering the bar, a government attorney must take another oath to enter into government service; that in itself shows the separate meaning of the government attorney’s oath. Moreover, the oath is significant to our analysis only to the extent that it underlies the fundamental differences in the roles of government and private attorneys— of particular note, the fact that private attorneys cannot take official actions.
. Indeed, the responsibilities of government lawyers to the public have long governed the actions they can take on behalf of their "client”;
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest ... is not that it shall win a case, but that justice shall be done.
Berger v. United States,
.Congress has clearly indicated, as a matter of policy, that federal employees should not withhold information relating to possible criminal misconduct by federal employees on any basis. We discuss at more length Congress’s recogni- *1274 lion of these concerns below in our discussion of 28 U.S.C. § 535(b).
. 28 U.S.C. § 535(a) authorizes the Attorney General to "investigate any violation of title 18 [the federal criminal code] involving Government officers and employees.” The Independent Counsel fills the shoes of the Attorney General in this regard because Congress has given the Independent Counsel "with respect to all matters in [his] prosecutorial jurisdiction ... full power and independent authority to exercise all investigative and prosecutorial functions and powers of ... the Attorney General.” 28 U.S.C. § 594(a);
see In re Sealed Case (Secret Service),
. President Nixon waived executive privilege and attorney-client privilege before the grand jury. See Special Prosecution Force, Watergate Report 88 (1975) [hereinafter Watergate Report].
. We do not address privilege exceptions relating to military secrets or other exempted communications.
. The district court did not rule upon this argument, and hence we lack the benefit of that court's thinking in addition to a complete record on the nature, scope, and content of communications between the President and Deputy White House Counsel with regard to the impeachment issue.
See Gilda Marx, Inc. v. Wildwood Exercise, Inc.,
. While a prior Comptroller General has thought that White House Counsel could properly be paid out of federal funds for representing the President in matters leading up to an impeachment, see Letter from Elmer B. Staats, U.S. Comptroller General, to Rep. John F. Seiberling 7 (Oct. 25, 1974), history yields little guidance on the role that White House Counsel would properly play in impeachment proceedings. The only President impeached by the House and tried by the Senate, Andrew Johnson, retained private counsel, and his Attorney General resigned from office in order to assist in his defense. See William H. Rehnquist, Grand Inquests 222 (1992). In contrast, after the House Judiciary Committee began an impeachment inquiry into the Watergate scandal, President Richard Nixon appointed James D. St. Clair as a special counsel to the President for Watergate-related matters. See Watergate Report 103. Although Nixon resigned before the House of Representatives voted on any articles of impeachment, St. Clair handled much of the President's defense until the President's resignation. See id. at 103-15. At the very least, nothing prevents a President faced with impeachment from retaining private counsel, and in turn this makes less clear what might be the division of labor between White House Counsel and private counsel.
. Contrary to the Office of the President's suggestion, this is not a novel concern stemming from the Ethics in Government Act. During initial discussions with the Watergate Special Prosecutor, "[James] St. Clair was primarily concerned that evidence produced for the grand jury not subsequently be provided by [the Special Prosecutor] to the House Judiciary Committee for use in its impeachment inquiry.” Watergate Report 104-05. The Special Prosecutor eventually asked the grand jury to transmit an "eviden-tiary report” to the House Committee considering President Nixon's impeachment. Id. at 143.
. The Office of the President cites no authority for the proposition that communications between White House Counsel and the President would be absolutely privileged in congressional proceedings, but rather merely suggests that they "should” be.
.
Compare
Proposed Fed.R.Evid. 503(a)(4),
reprinted in
. Of course, one unable to win protection through the intermediary doctrine still might be able to claim the client’s attorney-client privilege through a different route. The President maintains, for instance, that conversations between his private counsel and Lindsey are privileged to the extent that such conversations related to Lindsey’s prior private representation of then-Govemor Clinton. The present record is, however, inadequate for us to conclude what subjects may have been encompassed within Lindsey's prior private representation of Governor Clinton and whether Lindsey will be asked to testify before the grand jury about matters relating to the prior private representation. Although Lindsey might still assert attorney-client privilege as to information he learned while serving as the Governor's private counsel, regardless of whether he subsequently communicated such information to the President’s current private counsel, see Restatement § 45(2) & cmt. b, we decline to consider whether and to what extent Lindsey may assert attorney-client privilege for conversations he had while serving as Deputy White House Counsel regarding subjects that only relate to the prior private representation of the Governor. That question remains open for consideration by the district court upon request of the parties. See id. § 111 & cmt. c.
. Although the President contends that Lindsey also may claim the President's personal work product privilege for attorney work product prepared by or revealed to Lindsey about matters within the common interest of the President and the Office of the President,
see AT&T,
. Impeachment may remove the person, but no one could reasonably controvert that it affects the Office of the President as well. Even if there will always be a President and an Office of the President, it is unrealistic to posit that the Presidency will not be diminished by an impeachment. See, e.g., Michael Stokes Paulsen,The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo L.J. 217, 323 (1994); see also William H. Rehnquist, The Impeachment Clause: A Wild Card in the Constitution,85 Nw. U.L.Rev 903, 917-18 (1991). The possibility of impeachment implicates institutional concerns of the White House, and White House Counsel, representing the Office of the President,would presumably play an important role in defending the institution of the Presidency.