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January/February 1999 Behind Closed Doors By David S. Rudolf; Thomas K. Maher David S. Rudolf, a Director of NACDL, is a principal in the firm of Rudolf & Maher, P.A., Chapel Hill, NC. Thomas K. Maher is a principal in the firm of Rudolf & Maher, P.A., Chapel Hill, NC. Over the course of 1998, the public has received unprecedented exposure to issues of grand jury practice and procedure, thanks to our President and Kenneth Starr. Starr’s actions certainly have given the public a healthy dose of exposure to the power of prosecutors to pursue cases without restraint from any outside agency. In Starr’s recent testimony he asserted that, among Clinton’s many sins, Clinton sinned by asserting evidentiary privileges to try to limit testimony by Secret Service agents and presidential advisors, raising the specter that raising objections to a prosecutor’s demand for information will itself be sanctionable conduct. The public is also receiving sound bite education in the law of perjury, learning that it is the questioner’s job to ask the right questions and insist upon responsive answers. The nightly news broadcasts of witnesses being dragged before the grand jury, reports of claims of privilege by various witnesses, and Clinton’s attempted justification for his less-than-candi d answers have certainly raised the public’s awareness of the operation of the grand jury. As with any high profile case, however, the impression created by the ongoing grand jury investigation of the Lewinsky matter obscures the reality of the day-to-day operation of grand juries. Grand juries normally operate in secret, without extensive leaks, and targets usually have little leverage in guiding the investigation. While the public absorbs the stream of news about Starr’s investigation – and guides congressional reaction to the scandal through the election results – the courts wrestle with the issues of the extent of privileges that grand jury witnesses may assert, and the extent to which a citizen may be prosecuted for perjury based upon factually accurate testimony. In the meantime, Congress placed some limits on the actions of federal prosecutors through enactment of the Ethical Standards for Federal Prosecutors Act of 1998. Government Lawyers Cannot Assert Attorney-Client Privilege in Criminal Investigations Bruce Lindsey wore several hats as an advisor to President Clinton; he was Deputy White House Counsel, Assistant to the President, and trusted friend. Lindsey also acted as an intermediary between Clinton and Clinton’s private counsel when Clinton’s duties as President made it difficult for him to consult with private counsel. Finally, Clinton had consulted with Lindsey while Clinton was Governor of Arkansas and Lindsey was a private attorney. In each of these roles Lindsey received information relevant to Starr’s investigation into the Lewinsky matter. Lindsey predictably received a grand jury subpoena. During questioning before the grand jury Lindsey asserted both a governmental attorney-client privilege, a personal attorney-client privilege, and executive privilege. The district court rejected all of the asserted privileges, and both the Office of the President and President Clinton personally appealed. After the Supreme Court refused to take the case, the D.C. Circuit decided the case on an expedited basis. Recently, the D.C. Circuit issued an unredacted opinion. The majority held that there is a qualified attorney-client privilege that attaches to governmental attorneys’ communication with their agency clients, but that this privilege never applies when the attorney receives information that may be relevant to a criminal investigation. In other words, whatever privilege there is dissipates in the presence of a grand jury subpoena. This rule applies even if government counsel confers with the government employee’s private attorney over matters in which the employee and the government have a common interest. However, in the unlikely event that a government attorney received confidential information from the government employee solely as an intermediary to transmit to the employee’s private attorney, then the attorney-client privilege applies. The majority recognized that there is at least some privilege for a government attorney to withhold communications from their client. For example, numerous decisions have read exemption five of the Freedom of Information Act as protecting materials that would be protected by the common law attorney-client privilege in the context of a private attorney. Even a governmental client needs the ability to get candid legal advice, a need that is best served by protecting the communications between client and counsel. The client, of course, is the governmental agency and not the individuals with whom counsel communicates. In addition, the Department of Justice’s Office of Legal Counsel has taken the position that when a government lawyer represents a government employee who has been sued in their individual capacity, then government counsel stand in the shoes of a private attorney and the common-law privilege applies. Having recognized the benefits of the attorney client privilege in the context of government counsel, and the practice of according such a privilege to government counsel, the majority assumed that the attorney-client privilege exists when government counsel communicates with agency personnel. The majority, however, then tackled as a separate question whether the privilege applies in the grand jury context. Admittedly, in the context of a private attorney-client relationship, protecting the attorney from being hauled before a grand jury to testify to his client’s communications would be one of the prime goals of the privilege. According to the majority, when counsel works for the government, any privilege vanishes when counsel is served with a grand jury subpoena. Recognizing the lack of binding authority, the majority viewed it as the White House’s obligation to establish that the privilege should extend to the grand jury context, as opposed to Independent Counsel’s burden to show that there is some type of grand jury exception to the privilege. According to the majority, the role of government counsel precludes counsel from failing to disclose evidence relevant to a criminal investigation, even when that evidence comes from confidential communication with a client.
The majority also noted that 28 U.S.C. 535(b) requires 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.” Although recognizing that the White House is neither an agency nor a department of the executive branch, and that § 535(b) therefore did not clearly apply, the majority nonetheless applied the spirit of § 535(b) in deciding that the attorney-client privilege did not apply in the context of a criminal investigation. The majority observed that application of the principal of § 535(b) had been recognized by government counsel in the past.
The majority did hold that Lindsey can assert the attorney-client privilege as to communications from Clinton that were made solely for the purpose of having Lindsey transmit that information to Clinton’s private counsel. In this situation, Lindsey is acting as an agent in the private client-attorney relationship, and the privilege applies. The court recognized that the intermediary doctrine apples even when the intermediary adds value, such as when an accountant puts information into a form that is useful for counsel. However, the doctrine does not apply when the intermediary consults with counsel about strategic matters. Lindsey, then, could not be acting as an intermediary if he consulted with Clinton’s private attorneys about strategy decisions. Judge Tate, in dissent, disagreed with the majority’s willingness to allow the grand jury to pierce the attorney-client privilege with respect to official legal advice given by Lindsey to the President. Under the majority’s rule, governmental clients – including the President of the United States –cannot speak candidly with government counsel “because they can never know whether the information they share, no matter how innocent, might some day become ‘pertinent to possible criminal violations.’” Judge Tate was particularly concerned about the application of this rule to the President of the United States, observing that:
Although Judge Tate was more concerned about the damage done by restricting the attorney-client privilege than the majority, at least one of his comments is troubling. As with the majority, Tate recognized that a communication with a lawyer for nonlegal advice is not protected by the privilege. As an example, Tate noted that if Lindsey gave Clinton advice about the political fallout of invoking an evidentiary privilege, that communication would not be privileged. If this is in fact the law, then giving advice on legal matters that goes beyond purely legal issues raises the possibility of losing the privilege. For example, a corporation that consults with counsel about how to handle a pending investigation, and in the process discuss the public relations aspect of the investigation, loses the privilege. This is an overly restrictive view of the role of lawyers; the best lawyers do not give purely “legal” advice, but rather seek to counsel their clients in the context of their client’s overall situation. Literally True Answers Based Upon False Premise Can Be Prosecuted as Perjury As the public has heard numerous times from Clinton and his spin masters, he did not commit perjury if his answers were literally true, although they may have been misleading. As lawyers, we understand that it is proper to put the burden on the questioner to ask the right questions and insist upon clear, responsive answers. When a witness manages to conceal the truth without making an outright false statement, it is the fault of the questioner and the witness cannot be prosecuted for perjury. Recently, the Sixth Circuit held that a witness can be held to account for answers that – while arguably literally true – can be shown from the context of the questioning to have been made as a willful effort to conceal the truth. In United States v. DeZarn,3 the court confronted the issue of the propriety of a perjury prosecution in which the questioner included a false factual premise in the question, but from the context of the questioning the jury found that the witness knew what the questioner in fact meant to ask. The prosecution grew out of an investigation of political fundraising for the gubernatorial campaign in Kentucky in 1990. Defendant DeZarn was a member of the Kentucky National Guard in 1990. General Wellman of the Guard held a Preakness party in 1990, to which many guardsmen were invited and at which political contributions were solicited for Brereton Jones’ gubernatorial campaign. Jones attended and spoke. In 1991 DeZarn also attended a small dinner party at Wellman’s house, attended by six people. The attendees watched the Belmont Stakes. This party had nothing to do with campaign fund raising. After Jones was elected, DeZarn was appointed Adjunct General of the Kentucky National Guard. DeZarn’s apparent favoritism to supporters of Jones lead to an investigation of whether improper fundraising took place at the 1990 Preakness Party. DeZarn was questioned under oath as part of the investigation. During the questioning, the investigator asked about the 1991 Preakness Party. DeZarn denied that any fundraising took place, and denied knowing whether Jones attended. DeZarn was subsequently indicted for perjury, and convicted at a trial in which the government introduced evidence that DeZarn knew that questioning about a “Preakness Party” referred to the 1990 Preakness Party, even though the question had specifically asked about a 1991 event. DeZarn’s defense was premised upon the fact that he statements were not starkly untrue in the face of the questioner’s mistaken premise that the event took place in 1991, and that he had assumed the questions referred to the 1991 dinner party. The Sixth Circuit rejected all of DeZarn’s challenges, in essence finding that when the witness knows that the question involves a mistaken premise, then the witness cannot answer the question based upon that premise. In short, the DeZarn knew what the questioner meant to ask, and should have answered the question in the context of its intended meaning. In reaching this conclusion, the Court restricted the Supreme Court’s holding in Bronston v. United States,4 in which the Court held that literally true answers cannot serve as the basis for a charge of perjury when the witness is attempting to conceal the truth. In Bronston the questioner asked whether Bronston had ever had Swiss banks accounts, and Bronston replied that the company had an account in Zurich. Bronston was convicted on the basis that his answer implied that he did not have any personal accounts. The Supreme Court reversed, holding that “[T]he perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner — so long as the witness speaks the literal truth. The burden is on the questioner to pin the witness down to the specific object [of] the questioner’s inquiry.”5 The Sixth Circuit read Brontson as applicable only when the witness gives a literally true, but truly non-responsive answer. A non-responsive answer requires speculation as to whether the witness was implying something – such as the absence of personal accounts — and hence cannot support a criminal prosecution. According to the Sixth Circuit, the situation is different when the question contains a false factual premise. Even when a witness gives a responsive answer, if it can be shown that the witness was aware of the questioner’s mistake and in fact knew what the questioner meant, then the answer given will be evaluate din the context of the question as it should have been asked. The Court found support for this position in United Sates v. Robbins.6 In Robbins the defendant was questioned in bankruptcy proceedings about a corporation “11th and Meridean.” Robbins responded that he did not know that corporation, but did have a company called “11th and MacArthur,” which he claimed had no assets. In fact, Robbins owned a corporation called MacArthur and 11th Properties, which had assets. The Eighth Circuit found that the jury was entitled to find that in the context of the questioning there was no ambiguity as the corporation, and that Robbins meant to lie about the assets of his corporation. In relying on Robbins, the Sixth Circuit refused to accept the argument that there is a fundamental difference between a false factual premise injected by the witness and one injected into the question by the examiner.
This is not to say that the question to which the answer is made is not an important part of a perjury inquiry. Of course it is. A question that is truly ambiguous or which affirmatively misleads the testifier can never provide a basis for a finding of perjury, as it could never be said that one intended to answer such a question untruthfully. But, where it can be shown from the context of the question and the state of the testifier’s knowledge at the time that the testifier clearly knew what the question meant, the Government must be permitted to present, and the fact-finder to consider, those contextual facts. fundraising that took place at the 1990 Preakness Party, and understood that party to be the subject of the questioning, the ruling in DeZarn is nonetheless troubling. The witness should not be responsible for guessing at the questioner's meaning. Unlike Robbins, in which the witness created the ambiguity, it should have been the responsibility of the questioner to ask the right questions of DeZarn. The danger lies in cases that are closer to the line, and places a burden on witnesses to clarify questions before answering them. If witnesses are to be held to this standard, then the exclusion of counsel for the witness from the grand jury room becomes even more problematic. Grand jury witnesses must now determine the true intent of the questioner, and do so without legal counsel. Congress Holds Federal Prosecutors To State Ethical Rules The Department of Justice (DOJ) has long claimed that its prosecutors are not bound by the state ethical rules, and a DOJ regulation specifically allows federal prosecutors to communicate with represented parties. A number of courts have weighed in on the issue whether DOJ has the power to exempt its prosecutors from otherwise applicable ethical standards. Congress appears to have resolved the controversy through enactment of the McDade Amendment. This legislation provides that:
The Attorney General shall make and amend rules of the Department of Justice to assure compliance with this section. The law goes into effect in six months, and we can expect a concerted effort from some quarters to end it before it begins. Senator Orrin Hatch (R-UT) has warned that the law is now to broad and will have a “pernicious effect” on law enforcement. Among the practices that may be effected by the new legislation are federal prosecutor’s ex parte contacts with represented parties, the issuance of subpoenas to attorneys seeking client information, and potentially the failure to disclose exculpatory information to the grand jury. Some states have interpreted Model Rule 3.3 (d), which requires disclosure in all ex parte proceedings of “all material facts known to the lawyer,” as requiring disclosure of such facts in grand jury proceedings. Notes 1. Jack B. Weinstein, Some Ethical and Political Problems of a Government Attorney, 18 Maine L. Rev.155, 160 (1966). 2. 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). 3. ___ F.3d ____ (6th Cir. 1998). 4. 409 U.S. 352 (1973). 5. 409 U.S. at 352. 6. 997 F.2d 290, 395 (8th Cir. 1993). NACDL members aware of interesting grand jury cases should send pleadings to: Behind Closed Doors Rudolf & Maher PA 312 West Franklin St Chapel Hill NC 27516 Phone (919) 967-4900 Fax (919) 967-4953 | |||||||||
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National Association of Criminal Defense Lawyers (NACDL) 1660 L St., NW, 12th Floor, Washington, DC 20036 (202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org | |||||||||
