Petardsketch2A petard is not what you think it is. Well, to be more accurate, a petard is not what I thought it was. A petard is a small explosive device used to breach gates and the like as shown in the sketch reproduced above. The meaning of the word “petard” derives from taking the roots of the word in Middle French, Latin and Greek and making an analogy. That is, the small explosive character of the bomb is the equivalent of breaking intestinal wind. The phrase “hoisted by your own petard,” as used in Hamlet, means that one has blown oneself up. Hey, pay attention now, this is not a digression!

A year or so after Judge Ross dissented in Jones v. Clinton, I had my own run in with the Clinton whirlwind. Few people know it, but the First Lady is a government official for purposes of the attorney-client privilege. If you think about it, that makes sense. Anyway, Mrs. Clinton discovered some papers in the residence at the Whitehouse. Mrs. Clinton had a meeting with her personal lawyer and her White House counsel to decide what to do with the papers. They decided that the papers should be turned over to Kenneth Starr, the special prosecutor. That was not good enough for Starr, and he obtained a grand jury subpoena to get the lawyers’ notes of that meeting. Susan Webber Wright, the district judge, who is a really nice person and a great judge, said hell no. And that important matter of first impression came to the 8th Circuit, where I was sitting by designation.

The case is In Re Grand Jury Subpoena, 112 F.3d 910 (8th Cir.) (holding that the White House may not use the attorney-client privilege to avoid complying with the subpoena issued by a federal grand jury calling for lawyers’ notes and Mrs. Clinton’s reasonable belief that her conversations with White House lawyers were privileged was insufficient to prevent their disclosure), cert. denied, 117 S.Ct. 2482 (1997). Judge Bowman wrote the opinion for the court and Judge Wollman agreed. I dissented.

I vividly remember the oral arguments because they took place in a sealed courtroom in St. Louis. The proceedings were closed because the matter dealt with a grand jury matter. Anyway, as I saw it, the question was whether or not the White House had an attorney client privilege in a criminal case and whether Mrs. Clinton gave up her personal privilege by participating in a meeting with White House counsel.

Relying on Proposed Federal Rule of Evidence 503 and United States v. Nixon,  418 U.S. 683 (1974), I thought it plain that the White House had an attorney-client privilege and that the privilege could be overcome only as follows:

(1) The special prosecutor must make an initial threshold showing before the district court that the documents are: (a) specifically needed; (b) relevant; and (c) admissible [or would lead to the discovery of admissible evidence].

(2) Assuming such a showing has been made, the documents are first delivered to the district judge, who will examine the documents in chambers, to decide if in fact the documents are relevant and admissible, and irrelevant documents will be returned under seal to the White House.

I also reasoned that Mrs. Clinton did not forfeit her personal privilege because she had reasonably relied upon the existence of the governmental privilege in a matter of “common interest.” But, in the future, Mrs. Clinton could have no personal privilege under similar circumstances because under the Nixon balancing test the governmental privilege could be overcome in a criminal case in certain rare circumstances and thus she could not thereafter reasonably rely on the “common interest” proviso.

After the opinion was unsealed at the request of all parties and the matter hit the press, most everyone assumed the Supreme Court would take the case. After all, it was a matter of first impression and it involved the scope of the White House’s attorney-client privilege. But, as frequently happens, the Court fooled everyone. It let Judge Bowman’s opinion stand. Shortly thereafter Judge Ross called me. Our conversation was brief. He said simply, “Richard, my boy, we have been hoisted by our own petards.” And that was that.


P.S. To be perfectly clear, I do not mean to suggest in any way that Judge Bowman or Judge Wollman were motivated by politics. Moreover, as a district judge sitting by designation on an explosive case like the one mentioned, Judges Bowman and Wollman could not have been nicer or more helpful and that was so despite my dissent. They are true gentlemen.

What I learned from a political pro turned federal appellate judge

If you were a political insider during the 1960s the name Donald R. Ross would be well-known to you. Returning from WWII as a war hero, Ross became the youngest US Attorney in the history of Nebraska. Thereafter, he climbed the ranks of national Republican politics reaching the peak of power after the defeat of Goldwater. Vice chair of the RNC, and the person who ran the 1968 Republican National Convention, Ross was the consummate political pro when President Nixon was elected.  As an intimate of Senator Roman Hruska, the ranking member of the Judiciary Committee, Ross was soon appointed to the seat on the 8th Circuit that Harry Blackmun vacated when Blackmun went on the Supreme Court.

I had the great good fortune to serve as Judge Ross’ third law clerk. He became one of my two mentors–his brother-in-law, Ed Cook, later to become my law partner, became the other. Suffice it state that I revere Judge Ross, and the following example illustrates why that is so.

Despite the fact that Ross had very strong views about politics, when he became a judge I never once saw the slightest evidence that his decisions were motivated by politics or anything of that kind. Thus, in 1996, when the Clinton-Whitewater-Lewinsky-Paula Jones scandals and legal matters were raging, a dissent authored by Judge Ross surprised a lot of the judge’s Republican friends and associates, but it did not surprise me.

The case was Jones v. Clinton, 72 F. 3d 1354 (8th Cir. 1996) (despite the possible disruption of his official duties, holding that, during the term of office of the President of the United States, the President could be required to defend a private civil suit, including engaging in discovery, for acts the President allegedly committed prior to becoming President), aff’d Clinton v. Jones, 520 US 681 (1997).

Each of the three very distinguished judges sitting on the 8th Circuit panel had been appointed by Republican Presidents. Judge Pasco Bowman, a brilliant judge and often mentioned as being on the short list for the Supreme Court, wrote the majority decision. Judge Bowman explained that “the President, like all other government officials, is subject to the same laws that apply to all other members of our society.” He thought that case management techniques could be employed to avoid interfering with the duties of the President.

Judge Ross dissented. Judge Ross was worried that if a President could be sued during the President’s term of office, and subjected to the directions of a federal district judge during the course of the litigation, the office of the President would be harmed. Thus, he reasoned that unless exigent circumstances could be shown, all private actions for damages against a sitting President must be stayed until the completion of his term. Judge Ross saw no reason why the stay would prevent Jones from ultimately obtaining an adjudication of her claims.

The power of the Ross dissent was evidently such that Ross’ fellow Nebraskan (and successor) C. Arlen Beam felt compelled to file a special concurrence directed at the Ross dissent. Among other things, Judge Beam reasoned that the dissent’s concern about judicial interference with the functioning of the Presidency was “greatly overstated.”

Like Ross before him, Beam had been counsel to the Nebraska Republican Party. Beam too was a very heavy hitter in Republican circles prior to his appointment. While I have no inside knowledge on this, I am betting sparks were flying between Omaha and Lincoln where Judges Ross and Beam had their respective offices.

Judge Ross’ dissent in the Clinton case is a good example of a political pro turned judge knowing and internalizing the difference between law and politics.*While he taught his law clerks a lot of things, that lesson was among the most important. There is a post script, but I will write about that tomorrow.


*To be perfectly clear, I do not mean to suggest in any way that Judge Bowman or Judge Beam were motivated by politics.

%d bloggers like this: