(Reuters) - In an extraordinary article on Monday, The New York Times disclosed tension between two White House lawyers, White House counsel Donald McGahn and Ty Cobb, whom President Trump brought into the West Wing to handle independent counsel Robert Mueller’s investigation of alleged Russian interference in the 2016 elections.
According to the Times, which overheard Cobb’s lunchtime conversation last week with Trump counsel John Dowd, McGahn is worried about Cobb’s tell-all approach toward turning over documents to Mueller. McGahn’s own lawyer, William Burck of Quinn Emanuel Urquhart & Sullivan has supposedly asked Cobb to tell him whether the president intends to claim executive or attorney-client privilege over any of the documents Mueller wants to see.
That raises an intriguing possibility. I don’t think the White House has much of a shot if it claims executive privilege. The U.S. Supreme Court has already said in 1974’s U.S. v. Nixon that executive privilege gives way in a criminal investigation. Asserting attorney-client privilege would also be a long shot for the White House. As I’ll explain, three different federal appellate courts – including the District of Columbia, where Mueller has impaneled a grand jury – have held that government lawyers cannot rely on attorney-client privilege to defy federal grand jury demands for information.
But not every federal circuit agrees. In 2005, the 2nd U.S. Circuit Court of Appeals broke with precedent from the other three circuits, ruling in In re Grand Jury Investigation that a government lawyer who advised Connecticut governor John Rowland did not have testify to a federal grand jury about the advice she provided to him.
The Supreme Court has never been called upon to resolve the 12-year-old circuit split on the scope of attorney-client privilege for government lawyers subpoenaed by federal grand juries. So if the Trump administration really wants to push the institutional prerogatives of the White House to offer privileged advice to the president, it would have a pretty good argument for the justices to take up the issue.
Cobb acknowledged to the Times that he and McGahn “approach the (Mueller) investigation from different perspectives,” though he added that he has high regard for McGahn’s legal and management skills. Trump counsel Dowd separately said he and White House lawyers are working “in a professional manner” on the privilege issue.
Obviously, the wisdom of litigating attorney-client privilege for the next year or more is as much a political question as a legal one. Political calculation is way outside of my ken. Cobb has told Reuters that he expects the president to be out from any investigative cloud by the end of the year. That’s consistent with the Times’ portrayal of Cobb as committed to producing the emails and documents Mueller has requested – and suggests that Cobb would not support a drawn-out fight over the scope of attorney-client privilege for White House lawyers, especially if confidential White House counsel communications exonerate the president.
On the other hand, a prolonged appeal on a relatively arcane issue could dissipate public interest in the Mueller investigation, or at least any piece of it that involves the president. We don’t know what’s in the contentious documents so it’s impossible to figure out if it makes political sense for the White House to litigate to keep the material confidential. But the 2nd Circuit’s ruling in the Rowland case gives the Trump administration a legitimate reason to mount a fight.
Three appellate courts, as I mentioned, have ruled against government lawyers claiming privilege to ward off federal grand jury subpoenas. In 1997, the 8th Circuit held in In re Grand Jury Subpoena Duces Tecum that Clinton White House lawyers Jane Sherburne and Miriam Nemetz could not use the privilege to shield their notes from a federal grand jury acting under the direction of Whitewater counsel Kenneth Starr.
The following year, the D.C. Circuit reached the same conclusion in In re Bruce R. Lindsey, another Whitewater case. The D.C. Circuit said Starr’s grand jury was entitled to hear about the advice Deputy White House Counsel Bruce Lindsey gave to President Clinton.
The appeals court ruled that the primary duty of White House lawyers is to uphold the law, not to protect the president. “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,” the D.C. Circuit said. “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.’”
The 7th Circuit, in 2002’s In re Witness Before Special Grand Jury extended that reasoning to a statehouse lawyer who advised Illinois official George Ryan. The appeals court directed Roger Bickel, who had served as Ryan’s chief lawyer when Ryan was Illinois secretary of state, to appear before a federal grand jury investigating Ryan, who was then the state’s governor.
“Government lawyers have responsibilities and obligations different from those facing members of the private bar,” the appeals court said. “While the latter are appropriately concerned first and foremost with protecting their clients—even those engaged in wrongdoing—from criminal charges and public exposure, government lawyers have a higher, competing duty to act in the public interest.”
In the Rowland case in 2005, the 2nd Circuit looked at exactly the same competing interests for government lawyers. But it found the 8th, D.C. and 7th Circuits incorrectly balanced those interests. Yes, the 2nd Circuit said, it’s in the public’s interest to know whether officials have committed crimes. But it’s also in the public’s interest to encourage officials to ask for advice from government lawyers, the court said.
“We cannot accept the government’s unequivocal assumption as to where the public interest lies,” the 2nd Circuit wrote in the Rowland case. “We believe that, if anything, the traditional rationale for the privilege applies with special force in the government context. It is crucial that government officials, who are expected to uphold and execute the law and who may face criminal prosecution for failing to do so, be encouraged to seek out and receive fully informed legal advice.... Abrogating the privilege undermines that culture and thereby impairs the public interest.”
The 2nd Circuit explicitly acknowledged that its opinion diverged from precedent from the other circuits. One could argue that the split isn’t as deep as it may seem, since the 8th and D.C. Circuit Whitewater cases involved White House lawyers who, like all federal employees, have a statutory duty to disclose government wrongdoing. Nevertheless, the 2nd Circuit explicitly broke with its sister circuits on the fundamental question of loyalty and duty for government lawyers. According to the 2nd Circuit, government lawyers best serve the public when they can provide confidential counsel to officials. The other circuits, by contrast, regard the ultimate loyalty of government lawyers to be upholding the law.
“I think the 2nd Circuit ruling is a very firm rejection of the D.C. Circuit in Lindsey,” said former Obama White House counsel Neil Eggleston of Kirkland & Ellis. “The 2nd Circuit said the D.C. Circuit didn’t think about the issue the right way.” Eggleston conceded that he’s not exactly disinterested because he was on the losing side, along with Bill Clinton’s private lawyers, in the Lindsey case at the D.C. Circuit. (He also said, jokingly, that, “cosmically speaking, it would be unfair” if the Trump administration were able to claim attorney-client privilege despite precedent from the Clinton era.) But Eggleston told me he believes the 2nd Circuit is right.
“Taking away from the president of the United States the ability to talk to White House counsel is just short-sighted,” he said.
The Clinton White House asked the Supreme Court to review both the D.C. and 8th Circuit decisions allowing Whitewater grand juries access to privileged communications. The justices quickly denied petitions in both cases, but that was before the 2nd Circuit created a division among the federal appellate courts. (For what it’s worth, former Clinton White House lawyer Lawrence Robbins, now of Robbins Russell Englert Orseck Untereiner & Sauber, told me in an email that the justices might have taken the 8th Circuit case if they hadn’t already been occupied with the scope of presidential immunity in Clinton v. Jones.)
Prosecutors in the Rowland case didn’t appeal the 2nd Circuit’s decision, instead asking the appeals court not to publish its opinion after the former Connecticut governor agreed to plead guilty to conspiring to commit fraud. The 2nd Circuit said the decision was not moot and denied the government’s request.
Will the Supreme Court be called upon to decide whether the president can rely on attorney-client privilege in communications with White House counsel? President Trump’s apparently squabbling lawyers will have to put aside their differences to decide if it’s worth taking that risk.