UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


IN RE: SEALED CASE


99-3125a

D.C. Cir. 2000


*	*	*


United States Court of Appeals


FOR THE DISTRICT OF COLUMBIA CIRCUIT


Argued February 25, 2000 Decided July 14, 2000 


No. 99-3125


In re: Sealed Case


Appeal from the United States District Court  for the District of
Columbia  (No. 98ms00003)


---------


Before: Williams, Ginsburg and Rogers, Circuit Judges.


Opinion for the Court filed by Circuit Judge Williams.


Williams, Circuit Judge: A lawyer resisted compliance  with a federal
grand jury subpoena on grounds of privilege,  and the government filed
a motion to compel compliance.  Finding the documents privileged, the
district court reviewed  them in camera and found them subject to the
crime-fraud  exception. Accordingly it ordered them produced. We re-
verse: the understanding of the federal elections laws sup- porting
application of the crime-fraud exception is erroneous.


* * *


Because this case is under seal we endeavor to provide no  more
information than is necessary to our disposition. Prin- ciples
governing the relationships of courts and agencies, 


however, compel us to address--and, indeed, ultimately defer  to--a
civil enforcement recommendation issued by the Feder- al Elections
Commission ("FEC") when the matter was be- fore it. See In re RNC,
Alec Pointevint, and Haley Barbour,  Matter Under Review ("MUR") 4250.
We thus divulge facts  of the case to the extent they appear in the
Statement of  Reasons associated with the MUR, Statement of Reasons of
 Commissioners Wold, Elliott and Mason, MUR 4250 (Feb. 11,  2000), a
document that 11 CFR s 4.4(a)(3) requires be made  public. Of course,
the subject of this case might theoretically  be different from that
of the Commission proceeding, but the  factual similarity is so
obvious that it would be pointless to  suppress the actual names.


In May 1993 three officials of the Republican National  Committee
("RNC"), including the Chairman Haley Barbour,  founded the National
Policy Forum ("NPF"), a separately  incorporated, not-for-profit think
tank. Through September  1994 NPF received loans totaling $2,345,000
from the Repub- lican National State Elections Committee ("RNSEC"). 
RNSEC is a "nonfederal" account of RNC and thus is not a  "political
committee" for purposes of certain disclosure re- quirements and
contribution rules of the Federal Election  Campaign Act of 1971
("FECA"), 2 U.S.C. s 431 et seq. See,  e.g., id. s 433 (registration
requirements of political commit- tees), s 434(a)-(b) (reporting
requirements of political com- mittees), s 441a(1)-(2) (limitations on
contributions to and by  political committees).


In September 1994, when NPF still owed RNSEC  $2,145,000, Barbour and
other NPF and RNC officials arrived  at an agreement with Ambrous
Young, a foreign national.  Young's corporation, Young Brothers
Development, Ltd.- Hong Kong ("YBD-Hong Kong"), would provide
$2,100,000 in  collateral through its U.S. subsidiary to secure a loan
of that  amount from Signet Bank to NPF. On October 17, 1994  Signet
disbursed the loan to NPF, and on October 20 NPF  used $1,600,000 of
the proceeds to repay a portion of the  original loan from RNSEC.


The FEC's General Counsel recommended that the Com- mission find
probable cause to believe that RNC and its  officials had violated 2
U.S.C. s 441e(a)--a prohibition on  receipt of contributions from
foreign nationals. The Commis- sion split 3-3, and because a majority
of commissioners is  required to find probable cause, 2 U.S.C. s
437g(a)(4)(A)(i),  the vote precluded Commission enforcement action.
In re  RNC, Alec Pointevint, and Haley Barbour, MUR 4250. The  three
commissioners who voted for no-action provided a  Statement of
Reasons, details of which will follow.


NPF's loan repayment also drew the attention of the  Department of
Justice, which here rests its crime-fraud ex- ception claim on the
theory that the repayment transaction  amounted to solicitation and
receipt of foreign contributions  by the RNC in violation of s
441e(a), and conspiracy by  various RNC officials to defraud the
United States for failing  to disclose the transaction, 18 U.S.C. ss


On September 8, 1997 a grand jury subpoenaed the lawyer  who had served
as general counsel of RNC in the period  surrounding the loan
repayment. He declined to produce a  number of documents that he
claimed were subject to the  attorney-client and work-product
privileges. The government  filed a motion to compel compliance, and
the RNC intervened  to oppose the motion. Finding that the privileges
did not  attach, the district court ordered the general counsel to 
produce some of the withheld documents; on appeal by the  RNC, this
court reversed. In re Sealed Case, 146 F.3d 881,  888 (D.C. Cir.
1998). On remand the district court ordered  the documents produced,
holding that those privileges,  though applicable in the first
instance, were subject on the  facts here to the crime-fraud
exception. Not discussing the  alleged "crimes" in detail, the
district court said simply that  "the evidence shows that the RNC
sought the advice of [the  general counsel] in an effort to construct
the loan guarantee  transaction in a manner designed to conceal from
the FEC  the source of the funds used to acquire the loan," and "to 
evade federal election campaign laws." Concluding that the  government
has failed to allege any conduct that is criminal  under FECA, we


* * *


Appellant RNC first argues that the case is moot. The  theory is that
this court lacks, and the district court before it  lacked, authority
to enforce the subpoena because the grand  jury that issued the
subpoena had expired before the district  court issued its order on
September 24, 1999 granting the  motion to compel compliance. The RNC
relies primarily on  the First Circuit's opinion in In re Grand Jury
Proceedings  (Caucus Distributors, Inc.), 871 F.2d 156, 161 (1st Cir.
1989),  in which the court held that the running of civil contempt 
fines must stop at the expiration of the grand jury under  whose aegis
the contempt citation was issued, even though a  second grand jury
pursuing the same matter had been con- vened.


But whereas in Caucus Distributors the shift in grand  juries occurred
during the contempt enforcement process,  here it occurred before that
even started. The analogic force  that the Caucus Distributors court
drew from the statutory  rule that recalcitrant witnesses may not be
confined beyond  "the term of the grand jury, including extensions,
before  which such refusal to comply with the court order occurred," 
28 U.S.C. s 1826(a)(2); 871 F.2d at 160-61, is plainly absent. 
Indeed, the First Circuit was explicit that a "subpoena issued  by one
grand jury may be used to obtain evidence for a  second grand jury."
Id. at 160. While the court saw the  continuous running of fines after
expiration of the contempt  grand jury as posing difficult questions
as to when "an  investigation has ceased," id. at 161, such questions,
if perti- nent at all in this context, impose no comparable risk of
ever- accumulating penalties for an offense that may have become 
moot. Finally, the court relied heavily on language in Shilli- tani v.
United States, 384 U.S. 364 (1966); although there the  initial grand
jury investigation had evidently ceased altogeth- er, with no
successor grand jury, the Court had written  broadly, seeming to
require termination of contempt remedies  after any such expiration,
regardless of successorship. See  id. at 372, cited at 871 F.2d at


Appellant has identified no prejudice arising from enforce- ment of a
subpoena where the originally issuing grand jury  has expired and
another has indisputably carried the investi- gation forward. A
parallel situation was presented in United  States v. Kleen Laundry &
Cleaners, Inc., 381 F. Supp. 519,  521 (E.D.N.Y. 1974), where the
district court upheld enforce- ment of a subpoena issued by a federal
prosecutor in the  name of a grand jury that was not sitting at the
time but  would be sitting on the return date. The court saw no 
prejudice to the witness and noted that it is "the prosecutor  who has
the initiative and power by subpoena to bring proof  to the
courthouse." See id. at 522; see also In re Immunity  Order Dated
April 21, 1982, 543 F. Supp. 1075, 1078  (S.D.N.Y. 1982). Thus we
reject the claims of a lack of power  in the district court to enforce


* * *


On the merits, there are slightly different--and here imma-
terial--differences in the formulation of the test for the 
crime-fraud exception as applied to the two privileges in  question,
attorney-client and work-product. To establish the  exception to the
attorney-client privilege, the court must  consider whether the client
"made or received the otherwise  privileged communication with the
intent to further an unlaw- ful or fraudulent act," and establish that
the client actually  "carried out the crime or fraud." In re Sealed
Case, 107 F.3d  46, 49 (D.C. Cir. 1997). To establish the exception to
the  work-product privilege, courts ask a slightly different ques-
tion, focusing on the client's general purpose in consulting the 
lawyer rather than on his intent regarding the particular 
communication: "Did the client consult the lawyer or use the  material
for the purpose of committing a crime or fraud?"  Id. at 51. Here the
application of the crime-fraud exception  turns on a pure question of
law, which we resolve de novo.  United States v. Kim, 23 F.3d 513, 517


This case does not fall within the crime-fraud exception  because what
RNC and its officials are accused of is not  criminal. The government
alleges that RNC "conspire[d] 


either to commit an[ ] offense against the United States or to  defraud
the United States" in violation of 18 U.S.C. s 371.  Contrary to the
government's assertion that impossibility as a  matter of law is not a
defense to conspiracy, it clearly is in  this context. Because the
transaction described by the gov- ernment does not violate FECA, there
can be no finding of  conspiracy. "Pure legal impossibility is always
a defense.  For example, a hunter cannot be convicted of attempting to
 shoot a deer if the law does not prohibit shooting deer in the  first
place." United States v. Hsu, 155 F.3d 189, 199 n.16  (3rd Cir. 1998).
Obviously a charge of conspiracy to shoot a  deer would be equally
untenable.


As we understand the government's position, the RNC's  guilt turns on
two alternative theories, both of which assume  that the prohibition
of 2 U.S.C. s 441e(a) on contributions by  foreign nationals applies
not only to contributions to a "feder- al account" such as RNC's but
also to contributions to a non- federal account, here RNSEC. Besides
that each theory has  what may be viewed as a substantive element
(characterizing  a specific element of the transaction as the illicit
"contribu- tion") and an element collapsing legally distinct entities.
In  the first theory, (1) NPF's repayment of the loan to RNSEC  is
classified as a "contribution"; and (2) YBD-Hong Kong is  seen as the
contributor, by an elision of the entities. In the  second, (1)
YBD-Hong Kong's provision of the loan guarantee  to NPF is the
relevant "contribution"; and (2) RNSEC is  viewed as the recipient. In
light of the Commission's statuto- ry interpretation, both theories
flunk; the collapsing of enti- ties is unjustified, and the
substantive element of the first  theory (treating a loan repayment as


Because the Commission has in effect spoken to both  theories, we start
by considering whether we should defer to  Commission interpretations
in the context presented here-- where the Department of Justice in a
criminal case relies on  an interpretation of the relevant statutes
that has been  rejected by the Commission in a 3-3 decision that,
under the  statutory voting mechanism, 2 U.S.C. s 437g(a)(4)(A)(i)
(re- quiring affirmative vote of four commissioners), controls 
Commission enforcement.


We have already held that we owe deference to a legal  interpretation
supporting a negative probable cause determi- nation that prevails on
a 3-3 deadlock. See FEC v. National  Republican Senatorial Committee,
966 F.2d 1471, 1476 (D.C.  Cir. 1992). There the issue involved
interpretation of an  FEC regulation rather than of FECA (a
distinction we return  to later), and we relied on an earlier decision
of this court  insisting that, to enable judicial review, a no-action
decision  by three commissioners must be backed by their statement of 
reasons. Id. (citing Democratic Congressional Campaign  Committee v.
FEC, 831 F.2d 1131, 1134-35 (D.C. Cir. 1987)).


It is irrelevant that the prevailing interpretation was estab- lished
in the context of agency enforcement, whereas this is a  criminal
prosecution. Deference is due as much in a criminal  context as in any
other for interpretations made outside that  context, such as those
found in published regulations. See  United States v. Kanchanalak, 192
F.3d 1037, 1047 n.17 (D.C.  Cir. 1999) ("That criminal liability is at
issue does not alter  the fact that reasonable interpretations of the
act are entitled  to deference."); see also Babbitt v. Sweet Home
Chapter of  Communities for a Great Oregon, 515 U.S. 687, 703-05 


Here, unlike in National Republican Senatorial Commit- tee, agency
interpretation of a statute rather than a regula- tion is at issue.
The Supreme Court has recently elaborated  its view of the conditions
for deference, both as to regulations,  see Auer v. Robbins, 519 U.S.
452 (1997), and statutes, see  Christensen v. Harris County, 120 S.
Ct. 1655 (2000). As to  statutes, the focus of our interest here, the
Court drew the  line between interpretations that are controlling on
us if  "reasonable," under Chevron U.S.A., Inc. v. Natural Re- sources
Defense Council, Inc., 467 U.S. 837, 844 (1984), or  merely "entitled
to respect" to the extent that they have  "power to persuade," under
Skidmore v. Swift & Co., 323 U.S.  134, 139 (1944). The Court appeared
to make the interpreta- tion's legal effect the touchstone:
"Interpretations such as  those in opinion letters--like
interpretations contained in  policy statements, agency manuals, and
enforcement guide- lines, all of which lack the force of law--do not


Chevron-style deference." Christensen, 120 S. Ct. at 1657  (emphasis
added). (As examples of agency documents that  merit Chevron deference
the Court listed formal adjudica- tions and notice-and-comment
rulemakings. See id.) In  support, the Court cited Martin v. OSHRC,
499 U.S. 144  (1991), where it had made Chevron-style deference turn
on  whether the interpretation "derive[d] from the exercise of the 
[agency's] delegated lawmaking powers." Id. at 157. Al- though Martin
involved a regulatory interpretation, its use  by the Christensen
Court supports its application to statutory  interpretation as well.
Regardless of possible differences of  nuance between these views, we
find the Commission's proba- ble cause determination here entitled to
deference under  both.


Under ss 437g(a)(4)(A)(i), (5)(C), and (6)(A) the probable  cause
determination is part of a detailed statutory framework  for civil
enforcement and is analogous to a formal adjudica- tion, which itself
falls on the Chevron side of the line. Like  the citation to which the
Court deferred in Martin, the  probable cause determination "assumes a
form expressly  provided for by Congress." Martin, 499 U.S. at 157.
The  General Counsel advocates and the respondent opposes a  finding
of probable cause; through this statutorily mandated  adversarial
process, see 2 U.S.C. s 437g(a)(1), (3), the agency  "gives ambiguous
statutory terms concrete meaning through  a process of case-by-case
adjudication." INS v. Aguirre- Aguirre, 526 U.S. 415, 425 (1999)
(citation and internal quota- tion marks omitted). Unlike a judicially
unreviewable SEC  no-action letter, which this court has said would
not merit  Chevron deference, Roosevelt v. E.I. Du Pont de Nemours & 
Co., 958 F.2d 416, 427 n.19 (D.C. Cir. 1992) ("[T]he principle  of
deference described in [Chevron] is not applicable here, for  neither
the staff's no-action letter nor the Commission's brief  ranks as an
agency adjudication or rulemaking."), the no- action decision here was
made by the Commission itself, not  the staff, and precludes further
enforcement. Compare  Board of Trade of Chicago v. SEC, 883 F.2d 525,
529 (7th Cir.  1989) ("[The SEC staff] could change [its] mind
tomorrow, or  the Commissioners might elect to proceed no matter what


[staff] recommends. The SEC has not, in other words, issued  a 'final'
decision...."). Congress vested enforcement power  in the FEC,
carefully establishing rules that tend to preclude  coercive
Commission action in a partisan situation, where the  Commission,
itself statutorily balanced between the major  parties, 2 U.S.C. s
437c(a)(1) ("No more than 3 members of  the Commission appointed under
this paragraph may be  affiliated with the same political party."), is
evenly split. If  courts do not accord Chevron deference to a
prevailing deci- sion that specific conduct is not a violation,
parties may be  subject to criminal penalties where Congress could not


This reasoning is consistent with FEC v. Democratic Sena- torial
Campaign Comm., 454 U.S. 27, 37 (1981), where the  Court, in deciding
whether the Commission's decision to  dismiss a complaint was
"contrary to law," 2 U.S.C.  s 437g(a)(8)(C), deferred to the
Commission's interpretation.  Although the Court cited Skidmore
(Chevron after all had not  yet been decided), it spoke in terms more
consonant with  Chevron. The interpretation need only be "sufficiently
rea- sonable," FEC v. Democratic Senatorial Campaign Comm.,  454 U.S.
at 39 (citation omitted), and "[t]o satisfy this stan- dard it is not
necessary for a court to find that the agency's  construction was the
only reasonable one or even the reading  the court would have reached
if the question initially had  arisen in a judicial proceeding." Id.
Similarly, as this court  has said (again not explicitly in Chevron
terms), a 3-3 dead- lock would be subject to great deference: "In the
absence of  prior Commission precedent ..., judicial deference to the 
agency's initial decision or indecision would be at its zenith." 
Democratic Congressional Campaign Committee v. FEC, 831  F.2d 1131,


We now turn to the Commission's (i.e., the prevailing)  interpretation
of the applicable statutes in the Statement of  Reasons for MUR 4250.
The Department's first theory here  strikes out on the failure of its
basic claim that a loan  repayment is a contribution. On its face this
is improbable.  It would be unusual to characterize a loan
repayment--which  could include, for example, simple payment on a


money mortgage on a property sold by a political commit- tee--as a
"contribution." The Commission here rejected the  idea that the final
loan repayment from NPF to RNSEC fell  within the definition of
"contribution." The statute defines  "contribution" as "any gift,
subscription, loan, advance, or  deposit of money or anything of value
made by any person for  the purpose of influencing any election for
Federal office." 2  U.S.C. s 431(8)(A)(i). No reason appears why
repayment of  a lawful debt could qualify. It is true that strictly
speaking  the definition applies only to hard money contributions
("any  election for Federal office"), and thus not directly to a
contri- bution to RNSEC, which because of its non-federal character 
is not a "political committee." But in the absence of a  separate
definition for soft money contributions, we have no  reason to think
that Congress would intend a broader defini- tion of "contribution" in
the soft money context than in the  hard money context. Cf.


In rejecting the inclusion of a loan repayment in the idea of 
"contributions," the Commission observed that its regulation  did not
purport to expand the statutory definition. MUR  4250 at 3 & n.3.
Indeed, the regulation's formal definition  contains no reference to
"loan repayments," and goes on to  say that "[r]epayment of the
principal amount of [a loan by a  political committee] to such
political committee shall not be a  contribution by the debtor to the
lender committee." 11 CFR  s 100.7(a)(1)(i)(E).


The FEC's General Counsel before the Commission sought,  and the
government here seeks, to turn this regulation into a  sword. It
points to the clause of 11 CFR s 100.7(a)(1)(i)(E)  saying that
repayment to a political committee of the princi- pal of a loan "shall
be made with funds which are subject to  the prohibitions of" various
regulations, including a regulato- ry equivalent of the ban on foreign
contributions. But as the  Commission responded, the regulation is
specifically limited  to repayments to political committees, and thus
is not applica- ble here. MUR 4250 at 5. The government says the Com-
mission and appellant cannot rely on s 100.7(a)(1)(i)(E) selec-
tively, that they must take the bitter with the sweet. But 


citation of a regulation purporting only to govern loans by  political
committees as support for the obvious reading of the  statutory term
does not seem to us logically to require  accepting its caveat on
source of funds, where the caveat has  no visible statutory support
and the regulation does not even  purport to cover non-political


We thus turn to the government's theory that RNC offi- cials violated 2
U.S.C. s 441e(a)'s ban on foreign contribu- tions by bringing about,
or helping to bring about, YBD- Hong Kong's guarantee of the loan to
NPF. That a loan  guarantee is a contribution is an easy step. It is
clearly a  valuable economic contribution, and the Commission's
regula- tions (again for political committees), having defined
contribu- tion to include a loan, go on to define loan to include a 
"guarantee." 11 CFR s 100.7(a)(1)(i). And the government's  contention
that 2 U.S.C. s 441e(a) covers contributions for  non-federal
elections (e.g., to RNSEC) is here supported by  the Commission, MUR
4250 at 6, and meets the test of  reasonableness. The ban speaks to
contributions in connec- tion with an election "for any political
office," 2 U.S.C.  s 441e(a); although as we have seen, the statutory
definition  of contribution addresses only elections "for Federal
office," 2  U.S.C. s 431(8)(A)(i), we have already upheld the FEC's 
resolution of that contradiction in favor of a broad reading of  the
ban. Kanchanalak, 192 F.3d at 1046-50.


But unless NPF can somehow be telescoped together with  either RNSEC or
RNC, YBD-Hong Kong's contribution to  NPF is no violation. One
possible device would be a notion  that NPF was really part of RNC,
but the government has  not seriously voiced such a claim. Although
its brief contains  occasional language such as the assertion that
"NPF was  operated as a de facto division or subsidiary of the RNC," 
nowhere does it coherently argue that NPF is not, legally  distinct
from RNC, that the rules applicable to political  committees apply to
NPF, or that the relevant "contribution"  was the loan guarantee
directly from YBD-Hong Kong to  NPF. Instead it considers NPF an
intermediary: "[YBD- Hong Kong's domestic subsidiary's] apparently
innocuous  guarantee of a $2.1 million bank loan to the NPF


begins to resemble a prohibited foreign campaign contribu- tion that
was simply passed through the NPF."


Thus the heart of the government's case is the argument  that the
transactions should be considered end-to-end, begin- ning with the
loan guarantee made by YBD-Hong Kong and  ending with the repayment
from NPF to RNSEC. Here the  Commission is flatly to the contrary, and
its view that there is  no basis for treating the several legally
distinct transactions  as one is reasonable. The Commission considered
each of the  various elements--the "loan from the RNSEC to NPF, the 
collateral from [YBD-Hong Kong] to Signet, the loan from  Signet to
NPF, and the repayment from NPF to the  RNSEC," MUR 4250 at 10--and
found none of them to be  without valid business purpose. Id. at
10-11. The govern- ment has weakly claimed that the initial loan was
sham, the  creation of a debt for which the RNC never expected full 
repayment. The Commission found the charge rebutted "by  the
documentation of the loans with a promissory note and  RNC's reporting
of the loans; by the fact that NPF did repay  $200,000 of the loans
prior to receiving the loan from Signet  Bank; and by the efforts of
the RNC's officers to find sources  of funds for NPF that would enable
NPF to repay the loans."  MUR 4250, at 9. The government points to


Second, the government relies heavily on the idea that  RNC's purpose
in bringing about the YBD-Hong Kong guar- antee, and perhaps Young's
in giving it, was to enable NPF to  repay its loan to RNSEC. But the
Commission rejected the  principle that the parties' purposes can tie
together a set of  lawful transactions, each with a legitimate
business purpose,  to create an unlawful one. MUR 4250 at 9-14.


In so doing, the Commission relied on precedent. In In re  Fisher, MUR
4000 (1994), a candidate for Senate invited  potential contributors to
donate $1000 to the current cam- paign, and an additional $1000 to
each of three previous  campaigns (assuming they had not already
contributed to  them), to help those committees retire their debts.
The  candidate promised that he would match, with contributions 


to the current campaign, any funds contributed for retirement  of the
old debts. Because the only debts of the prior cam- paigns were to the
candidate himself, the overall effect was to  generate funds--in
excess of the $1000 per-individual limit-- for the current campaign.
The Commission nonetheless  found unanimously that these contributions
would not be  deemed to have exceeded the $1000 maximum. Here the  FEC
General Counsel sought to distinguish Fisher on the  theory that the
donors did not know that their donations  would eventually reach
Fisher's current campaign. The claim  is highly improbable, as the
campaign solicitations set a  target for each "couple" of "$5000 for
Richard's campaign."  MUR 4000 at 3. In any event, the Commission then
did not  consider the contributors' knowledge to be relevant. This 
seems reasonable: where the recipient is fully informed,  there
appears no reason why varying degrees of knowledge  on the part of
donors should be pivotal in determining the  recipient's guilt.


The government's theory of a reporting violation is even  weaker. 11
CFR s 104.8(e) requires that "National party  committees [e.g., RNC]
shall disclose ... information about  each ... entity that donates an
aggregate amount in excess  of $200 in a calendar year to the
committee's non-federal  account(s) [e.g., RNSEC]. This information
shall include the  donating individual's or entity's name...." We need
not  consider whether a loan guarantee such as that made by  YBD-Hong
Kong falls within the donations covered by  s 104.8, or whether a
guarantor such as YBD-Hong Kong is  properly considered a "donating
individual." Our rejection of  the government's effort to treat the
two transactions as one  moots both issues. To the extent that
YBD-Hong Kong  "donated" a loan guarantee it did so to NPF and not to
the  RNSEC, and thus the RNC was not required to report the  identity


The government has noted that in making its case to the  district court
for the crime-fraud exception it has included  evidence not before the
Commission in MUR 4250. (The  appellant notes, in parallel, that it
has never seen the evi- dence before the district court.) But this
does not alter or 


even bear on the gaps in the legal theories marshaled by the 
government to support the exception. There may somewhere  be evidence
such that, under valid legal theories, the govern- ment can justify
applying the exception. But until the gov- ernment tries to assemble
its evidence around valid theories,  the character of the evidence is
largely irrelevant.


* * *


Because we find that the legal theories invoked to support  application
of the crime-fraud exception are without exception  faulty, we
reverse.


So ordered.