In Re Bruce R. Lindsey (Grand Jury Testimony)

■ 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), 148 F.3d 1100 (D.C.Cir.1998), and the response of the United States of America, acting through the Office of the Independent Counsel, it is

ORDERED, that the redacted portions of this Court’s opinion in In re: Bruce R. Lindsey (Grand Jury Testimony), 148 F.3d 1100 (D.C.Cir.1998), are no longer protected from public disclosure by Rule 6(e), Fed. R.Crim. P., in view of the public release, by the House Committee on the Judiciary, of the Brief for Appellant William Jefferson Clinton, filed under seal in this Court, see In re Motions of Dow Jones & Co., 142 F.3d 496, 505 (D.C.Cir.1998); Appendix to the Referral to the United States House of Representatives, at 2157-2205 (Sept. 18, 1998); and it is further

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), 148 F.3d 1100 (D.C.Cir.1998), shall be unsealed; and it is further

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, 418 U.S. 683, 707-12, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); In re Sealed Case (Espy), 121 F.3d 729, 736-38 (D.C.Cir.1997). In the context of federal criminal investigations and trials, there is no basis for treating legal advice differently from any other advice the Office of the President receives in performing its constitutional functions. The public interest in honest government and in exposing wrongdoing by government officials, as well as the tradition and practice, acknowledged by the Office of the President and by former White House Counsel, of government lawyers reporting evidence of federal criminal offenses whenever such evidence comes to them, lead to the conclusion that a government attorney may not invoke the attorney-client privilege in response to grand jury questions seeking information relating to the possible commission of a federal crime. The extent to which the communications of White House Counsel are privileged against disclosure to a federal grand jury depends, therefore, on whether the communications contain information of possible criminal offenses. Additional protection may flow from executive privilege and such common law privileges as may inhere in the relationship between White House Counsel and the President’s personal counsel.

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., 142 F.3d 496, 497-98 (D.C.Cir.), (quoting order). “Thereafter, a grand jury here began receiving evidence about Monica Lewinsky and President Clinton, and others ....” Id. at 498.

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), 121 F.3d at 754. It rejected Lindsey’s government attorney-client privilege claim on similar grounds, ruling that the President possesses an attorney-client privilege when consulting in his official capacity with White House Counsel, but that the privilege is qualified in the grand jury context and may be overcome upon a sufficient showing of need for the subpoenaed communications and unavailability from other sources. The court also ruled the President’s personal attorney-client privilege and work product immunity inapplicable to Lindsey’s testimony.

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. -, 118 S.Ct. 2079, 141 L.Ed.2d 155 (1998). Following an expedited briefing schedule, on June 29, 1998, this court heard argument on the attorney-client issues. Neither the Office of the President nor the President in his personal capacity has appealed the district court’s ruling on executive privilege. In Part II we address the availability of the government attorney-client privilege; in Part III we address the President’s personal attorney-client privilege claims.

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, 737 F.2d 94, 98-99 (D.C.Cir.1984). It “is one of the oldest recognized privileges for confidential communications.” Swidler & Berlin v. United States, - U.S. -,-, 118 S.Ct. 2081, 2084, 141 L.Ed.2d 379 (1998).

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, 445 U.S. 40, 47, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), the Supreme Court has been “disinclined to exercise this authority expansively,” University of Pa. v. EEOC, 493 U.S. 182, 189, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990). “[Tjhese exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” Nixon, 418 U.S. at 710, 94 S.Ct. 3090; see also Trammel, 445 U.S. at 50, 100 S.Ct. 906. Consequently, federal courts do not recognize evidentiary privileges unless doing so “promotes sufficiently important interests to outweigh the need for probative evidence.” Id. at 51, 100 S.Ct. 906.

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), 148 F.3d 1073, 1076 (D.C.Cir.1998), petition for cert. filed, 67 USLW 3083 (U.S. July 16, 1998) (No. 98-93), and on the existence of “a ‘public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.’ ” Jaffee v. Redmond, 518 U.S. 1, 9, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996) (quoting Trammel, 445 U.S. at 50, 100 S.Ct. 906 (quoting Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (Frankfurter, J., dissenting))). That public good should be shown “with a high degree of clarity and certainty.” In re Sealed Case (Secret Service), 148 F.3d at 1076.

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, 617 F.2d 854, 862 (D.C.Cir.1980). “In the governmental context, the ‘client’ may be the agency and the attorney may be an agency lawyer.” Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C.Cir.1997); see also Brinton v. Department of State, 636 F.2d 600, 603-04 (D.C.Cir.1980). In Lindsey’s case, his client&emdash;to the extent he provided legal services'&emdash;would be the Office of the President. 1

*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, 617 F.2d at 862. In discussing the government attorney-client privilege applicable to exemption five, we have mentioned the usual advantages:

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, 566 F.2d 242, 252 (D.C.Cir.1977). Thus, when “the Government is dealing with its attorneys as would any private party seeking advice to protect personal interests, and needs the same assurance of confidentiality so it will not be deterred from full and frank communications with its counselors,” exemption five applies. Coastal States, 617 F.2d at 863.

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, 445 U.S. 360, 367-68, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980); In re Bieter Co., 16 F.3d 929, 935 (8th Cir.1994); Linde Thomson Langworthy Kohn & Van Dyke v. Resolution Trust Corp., 5 F.3d 1508, 1514 (D.C.Cir.1993); United States v. (Under Seal), 748 F.2d 871, 874 n. 5 (4th Cir.1984); United States v. Mackey, 405 F.Supp. 854, 858 (E.D.N.Y.1975), recognized a place for a government attorney-client privilege. Proposed Rule 503 defined “client” for the purposes of the attorney-client privilege to include “a person, public'officer, or corporation, association, or other organization or entity, either public or private.” Proposed Fed.R.Evid. 503(a)(1), reprinted in 56 F.R.D. 183, 235 (1972). The commentary to the proposed rule explained that “[t]he definition of ‘client’ includes governmental bodies.” Id. advisory committee’s note. The Restatement also extends attorney-client privilege to government entities. See Restatement (ThiRd) of the Law Governing Lawyers § 124 (Proposed Final Draft No. 1, 1996) [hereinafter Restatement].

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, 737 F.2d at 98-99 (quoting United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358-59 (D.Mass.1950)).

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, 626 F.2d 32, 37 (7th Cir.1980). A blanket assertion of the privilege will not suffice. Rather, “[t]he proponent must conclusively prove each element of the privilege.” SEC v. Gulf & Western, Industries, 518 F.Supp. 675, 682 (D.D.C.1981). In response to the Independent Counsel’s questions, Lindsey invariably *1271 asserted executive privilege and attorney-client privilege. On this record, it is impossible to determine whether Lindsey believed that both privileges applied or whether he meant to invoke them on an “either/or” basis. As we have said, the district court’s rejection of the executive privilege claim has not been appealed. With this privilege out of the picture, the Office of the President had to show that Lindsey’s conversations “concerned the seeking of legal advice” and were 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. Shaffner, 626 F.2d at 37.

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, 504 U.S. 36, 47, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992), while the Independent Counsel is by statute an officer of the executive branch representing the United States. For matters within his jurisdiction, the Independent Counsel acts in the role of the Attorney General as the country’s chief law enforcement officer. See 28 U.S.C. § 594(a) (1994). Thus, although the traditional privilege between attorneys and clients shields private relationships from inquiry in either civil litigation or criminal prosecution, competing values arise when the Office of the President resists demands for information *1272 from a federal grand jury and the nation’s chief law enforcement officer. As the drafters of the Restatement recognized, “More particularized rules may be necessary where one agency of government claims the privilege in resisting a demand for information by another. Such rules should take account of the complex considerations of governmental structure, tradition, and regulation that are involved.” Restatement § 124 cmt. b. For these reasons, others have agreed that such “considerations” counsel against “expansion of the privilege to all governmental entities” in all cases. 24 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Praotioe and Procedure § 5475, at 125 (1986).

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 ---, 118 S.Ct. at 2083. After finding that the Independent Counsel was asking the Court “not simply to ‘construe’ the privilege, but to narrow it, contrary to the weight of the existing body of caselaw,”. the Court concluded that the Independent Counsel had not made a sufficient showing to warrant the creation of such an exception to the settled rule. Id. at-, 118 S.Ct. at 2088.

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, 676 F.2d 793, 807 n. 44 (D.C.Cir.1982) (quoting In re Grand Jury Investigation, 599 F.2d 1224, 1235 (3d Cir.1979)); accord Trammel, 445 U.S. at 50, 100 S.Ct. 906, and because the government attorney-client privilege is not recognized in the same way as the personal attorney-client privilege addressed in Swi-dler & Berlin, we believe this case poses the question whether, in the first instance, the privilege extends as far as the Office of the President would like. In other words, pursuant to our authority and duty under Rule 501 of the Federal Rules of Evidence to interpret privileges “in light of reason and experience,” Fed.R.Evid. 501, we view our exercise as one in defining the particular contours of the government attorney-client privilege.

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,