Governor-Attorney Client Privilege

I. The Office of the Governor should not invoke government attorney-client privilege to prevent testimony by a government lawyer when the lawyer is subpoenaed in a federal grand jury investigation for possible federal criminal violations. This decision is up to the courts in a case by case basis. a. Attorney Client Privilege is subject to the common law by courts “in the light of reason and experience.” FRE 501. i. FRE 501 can be relied on over FRE 503 at the discretion of the Court. 1. FRE 503(a)(1) only makes “broad propositions that a governmental body may be a client for purposes of the attorney-client privilege” (In Re Duces Tecum, 8th circuit, 916). a. “We are instructed by Rule 501 to interpret the attorney-client privilege via common law ‘in light of reason and experience’ and not solely in light of the rule promulgated by the Supreme Ct. in 1972” (Id). ii. Necessity of Granting Potentially Relevant Info to Fed. Grand Jury as a matter of Constitution and Criminal Justice. 2. It is up to the federal grand jury to determine whether there is sufficient evidence to justify a formal accusation against a person for a crime (US Constitution, 5th amendment). 3. The rule of law should reign supreme and should be considered natural that every step be taken to ensure that justice be served promptly. b. “Supreme Ct. recognizes that the principle that the public is entitled to ‘every man’s evidence’ is particularly applicable to grand jury proceedings” (In Re Duces Tecum, 8th Circuit, 918,919). 4. Not even the chief executive can simply state an absolute privilege without giving valid reasons for the privilege. c. “A President’s acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of particular criminal cases in the administration of justice” (Id, 919). 5. An absolute privilege is argued for on the basis of the sovereignty of the 3 branches, but it would obstruct this tripartite system of government by establishing such sovereignty as absolute. It would then devolve the govt. to one where checks and balances become nonexistent. d. "The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Article III" (Nixon, 707). i. "It enjoins upon its branches separateness but interdependence, autonomy but reciprocity" (Id). b. There will be no “chilling effect” as a consequence of certain circumstances overriding the attorney-client privilege iii. Govt. attorney client privilege is respected and any attempts to curb it will follow only after it is deemed necessary to advance justice. Therefore, any fears that this will lead to precedents where the courts will freely "choose" to override such a privilege is unwarranted. 6. Interest in confidentiality of communication is not discouraged by the disclosure of a relatively small number of communications shown to be relevant to a criminal case. (In Re Duces Tecum, 919). iv. Even the Executive Privilege is not absolute. It is afforded an incredible amount of respect but when the courts are presented with enough evidence to suggest a realistic possibility of criminal behavior, unless evidence is presented by the executive branch, the courts may compel production of the required evidence to present to the federal grand jury. 7. "Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide" (Nixon, 706). e. If President claims specific need for confidentiality, would require special prosecutor to demonstrate that presidential material was necessary to the administration of justice in the instant criminal case. (Id, 713). f. "President's acknowledged need is general in nature whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice" (Id.). v. "If the atty. explains the law accurately and the official follows that advice, no harm can come from later disclosure of the advice, which would be unlikely anyway" (In Re Decus Tecum, 921). 8. Why would it lead to a chilling effect if the aforementioned would be the likely scenario anyway? Govt. officials should seek legal consultation in order to AVOID criminal prosecutions. c. Public Interest is not served by invoking Govt. Attorney-Client Privilege without a showing that the evidence to be produced would be relevant to the criminal prosecution. vi. Difference between Duty of Govt. and Private Lawyers. Government lawyers take another oath to enter into govt. service. (In Re Lindsay, 367). 9. “Unlike a private lawyer’s duty of loyalty to an individual client, a government lawyer’s duty does not lie solely with his or her client agency but also with the public” (In Re Lindsay, 367). 10. 28 USC Section 535(b): Govt. officers and employees must report violations of Title 18, federal criminal code, to the Atty. General (Id, 368). vii. Public Benefit of Govt. confidentiality may be subordinated to criminal justice processes in the grand jury context (In Re Grand Jury, 294). 11. Public officials are not private citizens because they exercise the power of the state. With this responsibility comes also the responsibility to act in the public interest. It follows that interpersonal relationships between the govt. official and the govt. lawyer must be subordinated to the public interest in good and open govt., leaving the govt. lawyer duty-bound to report internal criminal violations, not to shield them from public exposure" (Id). viii. Difference between Public and Private Communication with Govt. Lawyer 12. The allegations against the governor are criminal in nature because of his possible involvement in his use of public power in order to advance his private goals. Thus, the act was one in his private capacity, and whatever communications that he had with his govt. lawyer on that matter would be a private one, not protected according to the Lindsay court. g. "Where one consults an atty. 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" (Lindsay, 364). 13. For any rebuttals to this position, a proper solution would be to obtain a personal lawyer. h. "An officeholder wary of becoming enmeshed in illegal acts may always consult with a private attorney and there the privilege unquestionably would apply" (In Re Grand Jury, 294).