Academic journal article Defense Counsel Journal

Hillary's Conversations

Academic journal article Defense Counsel Journal

Hillary's Conversations

Article excerpt

The White House case presented a unique opportunity to review the application of the attorney-client privilege, as the information being subpoenaed was "all documents created during meetings attended by any attorney from the Office of Counsel to the President and Hillary Rodham Clinton (regardless whether any other person was present)." In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 913 (8th Cir. 1997), cert. denied sub nom. Office of President v. Office of Independent Counsel, 117 U.S. 2482 (1997). This pointed request specifically tested the applicability of the attorney-client privilege, whereas many other recent cases discuss the issue peripherally by examining evidentiary privileges in the context of relationships other than attorney and client.

The Office of Independent Counsel and the White House took "strikingly different rhetorical approaches to the question presented," according to the Eighth Circuit:

The OIC argue[d] that recognizing an attorney-client privilege in these circumstances would be tantamount to establishing a new privilege, which courts ordinarily undertake with great reluctance. The White House, in contrast, argues that the attorney-client privilege is already the best established of the common law privileges and that, furthermore, it is an absolute privilege. The White House is correct, of course, in its assertion that the attorney-client privilege is the oldest known to the common law. [112 F.3d at 914, citation omitted.]

Given the all-or-nothing nature of the dispute and the absence "persuasive direction" in the case law, the court turned to an analysis of general principles and pointed out:

For more than three centuries, it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man's evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule. [112 F.3d at 918, quoting United States v. Bryan, 339 U.S. 323, 331 (1950), quoting 8 JOHN H. WIGMORE, EVIDENCE sec sec 2192 (3d ed. 1940).]

Because they are exceptions to this general rule, the court continued, privileges are not lightly created and may not be expansively construed because they are in derogation of the search for truth. …

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