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"Estradification":

In the spirit of confirmation battles spawning a new lexicon (e.g., "Borking") the Washington Times reports today on what some Republicans are calling "Estradification"--requiring the Justice Department to turn over internal legal memoranda written by Roberts while he worked in the SG's office. The refusal by the White House to surrender these sorts of documents was the basis for the Estrada filibuster (hence the name) as well as the current Bolton stalemate.

Regardless of the merits of the request, it seems highly unlikely that the White House will surrender these documents. The tone of the article suggests that even though the request held up a vote on Estrada (which was much lower profile), few seem to believe that the refusal to turn over these documents would support a filibuster on a Supreme Court nominee. I haven't followed the exact nature of the Bolton request closely enough to say whether what is being requested there is similar to what may be requested here and in the Estrada situation. So far, it looks like this has not come to a head, so it could turn out to be a non-battle.

Personally, the request for internal Executive Branch documents for judicial confirmations always seemed like a bit of stretch to me. It also seems like it would be a stretch to me to request draft opinions and other non-public deliberation papers from Roberts's time as a Circuit Judge, as opposed to published opinions. The major problem in both situations, of course, is the institutional harm that such requests would have on the internal deliberations of the Executive or the Judiciary if people knew they could come out later.

I looked around a little bit, but I haven't found any legal commentators who think that requesting these sorts of documents is appropriate. During the Estrada filibuster seven former SG's of both parties spoke out against these requests and the use of the filibuster in relation to it. If someone has identified a persuasive argument as to the propriety of requesting these internal memoranda, please note it in the Comments. Overall, my impression is that this is one of those places where there is fairly uniform agreement that it seems like a bad idea to go there. But it may be that someone out there is making the argument and I just haven't come across it.

So my sense is that this issue likely won't reach escape velocity in terms of leading to a filibuster, but it may be one stealth technique that is on the table to try to combat what so far seems to be pretty successful stealth nominee, especially because it did seem to work on Estrada and so far seems to be successful on Bolton. If the request is not made, however, then that seems to create problems of its own, as then it seems to raise the question of why the failure to turn over those documents was definitive in the Estrada (and perhaps Bolton) situation, but is not requred for Roberts. So the question is whether the refusal to surrender the documents in this case would be prejudicial to the Democrat's request to surrender those documents in the other cases and their willingness to filibuster nominations where the documents are not produced. But perhaps there's a difference between what is being requested in the various cases that supports a filibuster in one instance but not the other.

Update:

Several people in the Comments have clarified that the Bolton situation (which, as I noted, I haven't followed the details that closely, but was mentioned in the Washington Times article) can be distinguished from Estrada (and presumably Roberts). So I have stricken the Bolton references in the post.

TS:
One big problem I see with these requests with respect to attorneys is that the significance of things like legal memoranda is subject to severe distortion because very few people understand how lawyers work and what their role is.

If you're, say, an associate in a law firm and a senior partner tells you to write a memo discussing how to defend Enron, it doesn't mean you're an advocate of corporate fraud. It means you're doing your job.

We saw this most recently in the Alberto Gonzales nomination. Gonzales was asked to come up with the best legal justification for what the adminstration had already decided to do. It does not follow that he personally advocates torture or that he would not laugh his own argument out of court if he were sitting on the bench.

Therefore, apart from any concerns about executive privilege, any legal memos written by Roberts would be almost completely useless in determining what Roberts really believes.

BTW, I think the Bolton nomination presents a completely different issue. The Dems want certain documents because they are investigating a specific, known, problem. I think that's a very different thing than wanting to rummage through twenty years of work product on a fishing expedition.
7.22.2005 3:51pm
AF:
Nobody can deny that there are downsides to requiring judicial candidates to provide internal memoranda in confirmation hearings. The argument for requiring them is that these disadvantages are outweighed by the Senate's need for information on which to base its advice and consent.
7.22.2005 3:59pm
Greedy Clerk (mail):
I agree with the view that asking for documents from the SG's office is out of bounds. The Bolton thing is completely different however and should not be compared to Estrada. For one thing, the White House in Bolton did promise to produce documents, after being asked by the Republican chairman and the ranking Democrat. The administration then reneged on that promise. It's comparing apples and oranges to lump the Estrada situation in with the Bolton one.
7.22.2005 4:00pm
Buck Turgidson (mail):
There is another big difference between the Bolton and Estrada cases. Estrada requests were nothing more than a fishing expedition. In Bolton's case, there is clear malfeasance and the situation goes to the root of Bolton's character. Bolton is a functionary and not a diplomat. If anything, Bolton is the antithesis of a diplomat. There are two sets of notes that have been requested on Bolton. First set relates to the background of one of his pet projects--a project on which he contradicted existing intelligence in advancing his own theory. The second set is a collection of NSA transcripts. This one's more complicated. NSA transcripts are documentary evidence of conversations between US officials and others. The names of foreigners are readily available. The names of US officials are protected. Bolton has repeatedly requested the highly classified list of names of the US officials in the memos. Basically, he was spying on his colleagues. If Botlon had no legitimate reason for this information, then his requests and related activities amount to a felony (and a violation of national security to boot). What? Another felon nominated for a job in this administration? (Remember Bernie Kerik?)

The consesus seems to be that there will not be a positive vote on Bolton. He's never going to be confirmed. So it's either a recess appointment, which would make the US UN mission the laughing stock of the diplomatic community, or it no more Bolton. That would likely mean the end of his political career (and good riddance, too). Not to worry--there are plenty of places a political hack with a nack for overstatement can make a second career.
7.22.2005 4:17pm
XX Fredrik Nyman XX (mail):
Assuming that an argument can be made for breaching privilege here, why limit the document request to internal memos written as counsel for the White House?

The D's might as well demand that the Supreme Court produce everything that Roberts wrote when he was clerking for Rehnquist on the Supreme Court.
7.22.2005 4:21pm
Mark:
Todd, why do you think it doesn't have "escape velocity"? Because the case for the memos isn't meritorious? It seems to me the merit of the tactic is irrelevant; in the Estrada case, the memo request was made in order to lay a foundation for a filibuster and used only because Estrada, like Roberts, presented a pretty tough flank to attack. I thought it was pretty obvious that the filibuster was made not because the Democrats felt they didn't have enough info (that was a pretext), but because (1) they wanted to stop Estrada from getting to the Supreme Court and figured it would be easier to filibuster a talented Hispanic nominee at the appeals level (2) more importantly, they wanted to send a message across Bush's bow, by showing they had the stones to take down his flagship nominee, despite his attractive personal story and pedigreed resume. It strikes me that the tactic has potential legs against Roberts--simply because it has, to date, worked.
7.22.2005 4:27pm
Zywicki (mail):
Mark:
I'm just guessing. My sense is that if there is not a strong merits argument (which, as I said, I haven't seen one), then I think that the White House would win in any showdown on this in public opinion. So, in the Estrada case, I think it just may not have been high-profile enough in the public consciousness for the White House to be able to push it through. Here, though, even though the Democrats held the line on Estrada, my intuition is that in this higher-profile battle they wouldn't be able to hold out. So I think that the merits argument intersects with the political argument.

But you certainly could be right--as with so many of these things these days we really are in unchartered waters and your guess is as good as mine.
7.22.2005 4:43pm
Fabian:
This is a poorly argued post. First, as Greedy Clerk aptly points out, the Estrada and Bolton situations are only superficially similar.

Second, there is a world of difference between documents from the Executive and documents from the Judiciary in this context -- a difference that Todd and Fredrik Nyman elide. The Executive branch -- i.e., the President -- is the appointing authority here. The President obviously has access to Executive branch documents. Thus, the request for Executive documents is a request for documents that the President may well have relied upon in making a nomination. The Executive does not have access to the documents of the Judiciary.

Moreover, the "institutional harm" Todd refers to (to the extent it is a real concern at all) would be much less of a concern with respect to the Executive because the Executive could insure that the dcouments in questions would not have to be turned over to Congress by simply nominating someone else.

Third, the question of whether failing to be "consistent" on the production of these types of documents would "prejudice" the Democrats in the case of other nominees is simply silly. We have long, long since passed the point where either party has been a principled actor with respect to judicial nominees. Certainly a cry of "inconsistency" on this type of point is not going to add anything to the GOP's already fulsome array of talking points regarding Democratic perfidy on nominees.
7.22.2005 4:50pm
Kazinski:
There is an even bigger difference between the Bolton request and the Estrada case: The requested Bolton documents are top secret, and while they were reviewed by the ranking members of both parties from the Senate Intelegence committee they were deemed too sensitive for to be released to the Senate at large. The White House did allow a senior Democratic Senator, Jay Rockefeller, to review the documents and he said there was no smoking gun and the contents were "pure vanillia". So it seems the distinction is that the Dems were on a sincere fishing expedition with Estrada, but with Bolton they made a request that they knew could not be honored for documents they knew were innocuous, because they needed an excuse to refuse a vote.
7.22.2005 4:55pm
Hattio (mail):
Prof. Zywicki,
I agree with you that on the merits, the Democrats should lose if they argue they should be given these documents on Roberts. However, I'm not sure that the merits are so obvious that they would lose in the court of public opinion should they choose to press this issue. After all, the slogan "Why should you mind if you have nothig to hide" has largely been accepted by the public regarding the slow erosion of 4th amendment rights.
7.22.2005 5:03pm
Mark:
Yes, it is possible the document rationale wouldn't stand up to public scrutiny. But my guess is that the Democrats, if they go the document route, will wager (1) that the average swing voter, the voter most likely to be troubled by its lack of merits, doesn't vote at election time based on Supreme Court nominations and (2) that the base voter, who pays attention to Supreme Court fights, will discount the weakness of the document argument. Assuming the common wisdom is correct that, after 2004, a "base turnout" strategy wins elections, a disingenuous document strategy could have much political upside and little downside in Dems' eyes; as a result, the political value and merits value of the document strategy may diverge.

But you are certainly right that we are in uncharted waters without a compass on this and therefore everything is just so much wild speculation at this point...
7.22.2005 5:04pm
Steve:
I don't see a difference between the SG memos Roberts wrote and any legal memos he may have written to his clients as a private lawyer. Yes, the WH is the client in the former case and you can ask them to waive the privilege, I guess; but the link between the advice you give a client and how you would rule as a judge is quite tenuous. What do people suppose these memos say, "I advise you that I think Roe v. Wade should be overturned"?

However, Fabian's point, that the Executive had access to these memos in connection with making the nomination, is excellent. I guess if we were living in a world of good faith, I'd say the Senate should be entitled to review "any documents reviewed or relied upon by the Executive Branch in connection with making this nomination, with the exception of documents reflecting internal deliberations." Then again, no one has asked me.
7.22.2005 5:44pm
BGreer (mail):
If you consider Robert Jackson a "legal commentator," then this might be of interest to you.

The following is from a 1941 opinion issued by Jackson when he was Attorney General. Jackson, as we all know, had previously served as Solicitor General and later went on to be a Supreme Court Justice and Nuremberg prosecutor. He probably understood the need to protect executive branch deliberations better than anyone. And his concurring opinion in <i>Youngstown Sheet and Tube Company v. Sawyer</i> (1952) is probably the most influential judicial statement on the separation of powers doctrine. Therefore, his views on this topic seems highly relevant.

The primary purpose of this Attorney General opinion was to defend the executive branch's refusal to turn over internal deliberative materials to a congressional committee (FBI investigative reports specifically). But he added this passage at the end:

"Of course, where the public interest has seemed to justify it, information as to particular situations has been supplied to congressional committees by me and by former Attorneys General. For example, I have taken the position that <b>committees called upon to pass on the confirmation of persons recommended for appointment by the Attorney General would be afforded confidential access to any information that we have -- because no candidate's name is submitted without his knowledge and the Department does not intend to submit the name of any person whose entire history will not stand light.</b>" 40 U.S. Op. Atty. Gen. 45 (1941).

Notice he says "confidential" access, which might be a reasonable compromise for sensitive materials likes this.

It's also interesting to note that Roberts reportedly is a great admirer of Jackson.
7.22.2005 5:51pm
Russell (mail):
I tend to agree with Fabian: I think one can support requests for executive branch documents on fairness grounds. Consider, for example, the phenomenon that has been noted elsewhere (sorry, can't find a link at the moment) that despite Judge Roberts' relatively sparse public record, conservatives seem to have almost universally lined up in support. That could be (although I have no evidence that it is) because the administration shared excerpts from the "privileged" documents --- or just assurances based on having reviewed them --- with its non-executive branch fellow travellers. In light of that possibility, it seems reasonable to allow the Senate to even the field by seeing the same sorts of documents to allow it to fairly exercise its confirmation function.

Now I doubt there's any realistic chance that the documents will be shared, or that a fillibuster can be sustained in this case. But as a matter of principle, I don't see why certain types of executive branch documents should not be shared with the Senate in this type of case, as it will otherwise be difficult if not impossible for the Senate to advise and consent in any meaningful way on nominees with this sort of profile.
7.22.2005 6:20pm
Zywicki (mail):
A reader corrects me--we are not in "unchartered waters" as I said, but rather "uncharted waters." And I'm even in the middle of listening to "The Perfect Storm" as a book on tape, so I should know better.
7.22.2005 7:31pm
jgshapiro (mail):
Second, there is a world of difference between documents from the Executive and documents from the Judiciary in this context . . . The Executive branch -- i.e., the President -- is the appointing authority here . . . Thus, the request for Executive documents is a request for documents that the President may well have relied upon in making a nomination. The Executive does not have access to the documents of the Judiciary.

I don't see the logic in Fabian's argument, unless I am missing something. No one is talking about requesting Robert's draft judicial memoranda from the DC Circuit, which admittedly would be judicial documents. What they are suggesting they request is his draft memoranda/briefs in the SG's office (just like they did for Estrada).

The SG is part of the Justice Department, but the Justice Department is not part of the judicial branch, it is part of the executive branch. The SG may be called the "tenth justice," but he is no more a judge than any other advocate who appears before a court.

So, if it is proper to request documents pertaining to Bolton from the NSA or the State Department (also parts of the executive branch), why not documents pertaining to Roberts from the SG's office?
7.22.2005 9:09pm
Karl (mail):
The reason why SGs of both parties back non-disclosure of internal memos is because the SG must be able to get full and frank discussion of the strengths and weaknesses of arguments relevant to a legal case. Moreover, the SG may have to weigh competing interests within different parts of the executive branch. Ultimately, the SG is a lawyer and should not be required to disclose privileged material or work product any more than you would want someone to have the ability to force your own lawyer to disclose such material.
7.23.2005 12:02am
Trashy (mail):
What is the point of keeping prior drafts of briefs, opinions, etc. Is there some requirement that drafts be kept that I've never heard of? I always pitch drafts of legal memoranda, briefs and, when I was clerking, of opinions.
7.23.2005 12:05am
Drewsil (mail):
Hmm one possiblity that may have applied to Estrada was that most of his legal work was internal work for the Whitehouse, and this work was a major basis for his appointment. One could try to make a cogent line of argument along the following lines:

Assuming that an appointees/nominees public documents do not provide a sufficient basis for the senate to fulfill its advise and consent role, it is permissible for the senators to ask for supplementary private documents. If these are not provided then the senators need not confirm the nominee, as they would not have declined to confirm the nominee if the work expressed in these documents had never occured.

Another reasonable argument could be made if only some of the internal documents that a given nominee had prepared were presented. Then one could argue for the release of the rest on the grounds that those documents that were presented almost assuredly are those which help the candidate most.

I doubt these lines of reason would apply in many cases, but thought I would throw them out. Neither would apply for Roberts.
7.23.2005 5:29am
Adam (mail) (www):
What bothers me about all this is that it seems to be coming from the perspective of Roberts Must Be Confirmed Unless Democrats Find Trash, rather than some notion that Roberts has an affirmative obligation to share what his judicial philosophy is so that the Senate can properly consider his nomination.

As Russell notes, it's almost like there's a dog whistle that's been sounded which only conservative ears can pick up which assures them that Roberts will be a reliable vote on issues of social concern; it'd be nice to share that information with the rest of us. Why can't the White House defend this nomination on the merits of Roberts' judicial philosophy rather than merely on the absence of negative evidence?
7.23.2005 9:34am
Al Maviva (mail):
One thing that is getting lost here is the precedent that this establishes, and the harm it will cause government attorneys who attempt to counsel their clients in confidence.

If the nomination of an attorney or a client for a senate confirmed position is grounds for regularized, forced waiver of the privilege, no conscientious attorney of the type likely to be found working on high level policy and advising decision makers, will commit anything significant to paper.

This doesn't sound disastrous, but it would destroy government agencies' institutional memory, as well as reducing accountability. We wouldn't have the leaked so-called torture memos to flog the Administration with, had DOJ and WH attorneys offered legal advice with the probability of disclosure in mind. The quality of advice offered wouldn't be as high, either; few clients have the ability to retain every salient point of an oral briefing on tricky legal points.

The other effect is that the next time we have a Democratic president, the Republicans will no doubt escalate the tactics used today, and request *all* work product created by the Democratic nominees as a condition of confirmation.
7.23.2005 11:03am
Bruce Hayden (mail):
At least in this forum, the participants understand that the Democrats can't ask Roberts for this information and expect him to provide it. It is, of course, the client, the U.S. Govt. (or is it the Executive Branch? No real difference in the results here), that holds the privilege, not the attorney, and it would have to waive it, as it could in the form of President Bush authorizing disclosure.

I too am troubled by the problem that most outside the legal community wouldn't understand an attorney's job when writing a legal memo. As such, you answer legal questions from someone higher up, whether that be a more senior lawyer, or the client. You answer the question posed, and you don't make policy.

So, AG Gonzales told the President that those captured on the battlefield were potentially illegal combatants, and, thus, mostly not subject to Geneva Convention protections. Someone had to interpret the laws here for the President. Ditto for torture. What is torture and what is not, under the law. Note in particular the later - by all indications we are not pushing the definition nearly as far as we can, for moral reasons. But, nevertheless, someone had to tell the President what the law was. This doesn't mean that he approved of torture, just that his job was to draw the legal (but not moral or political) line for the President.

Personally, I suspect that the work that Roberts has done for the Executive Branch is a lot less controversial than that done by Gonzoles, and, thus, his work product even less relevant.
7.23.2005 1:45pm
CharleyCarp (mail):
1. Not every memo a lawyer writes is priveleged. Not every word of a memo that includes some privileged matter is privileged.

2. The Pres can waive privilege, and always has this power. The SG always knows this, and should/must act accordingly. (Similarly, any client for whom any lawyer has written a memo can waive the privilege, and give the memo to the New York Times.)

3. The Pres can say he doesn't want to waive privilege. The people seeking the documents can say they don't want to vote for a guy who's memos they haven't seen.

4. Think of this as the equivalent of a fee dispute. Judge Roberts has been nominated for a job for which his ability to engage in legal reasoning is a primary qualification. The client has the burden of establishing the nominee's qualifications. The client insists that the nominee's reasoning ability is of the highest quality, based not only on the published record of 2 years on the court of appeals, but also based on his legal work before that. Are the memos relevant in establishing the truth of this assertion? Has the substance of the memos been put into issue by the client?
7.23.2005 5:16pm
Bruce Hayden (mail):
True, not everything you do for a client is protected by confidentiality. But much of it is, esp. if you are careful, as Roberts appears to be. And I, for one, if it is borderline, would tend to error on the side of nondisclosure.
7.23.2005 6:55pm
Bill Dyer (mail) (www):
John Roberts has argued dozens of cases before the Supreme Court -- performing under the brightest public spotlight a lawyer can ever have shined upon him. He's written, or been involved in the writing of, hundreds of briefs that are available to the public. His academic and employment records are extraordinary and known to all. The FBI has thoroughly investigated him before and will do so again; these investigations include interviewing hundreds of people he's interacted with, and if there are any red flags found, the Senate will have the benefit of knowing about them. As a lawyer and a judge, John Roberts has interacted with hundreds of professionals, including prominent Democrats, who have had a thorough opportunity to get to know his capacities and his character, and who have a sound basis to share with the Senate their considered opinions about his fitness.

In sum, there is a more than adequate basis to evaluate his fitness for the Supreme Court bench without having to start trampling fundamental principles of justice -- and the attorney-client privilege is certainly one of those, even before you add the constitutionally important dimension of federal separation of powers.

Shredding these privileges would hurt the public. Effectively disqualifying the most public-service-minded lawyers from nomination to the federal bench, on penalty of having to waive or see trampled the privileges associated with their advice and work product, would drain a huge fraction from the pool of potential nominees, including many of the very best and most qualified.

Historically, Supreme Court Justices -- including lawyers who've practiced for the government -- have been confirmed or rejected on the basis of a tiny fraction of the evidence that this Senate will have about Judge Roberts. The Presidents who've nominated those lawyers have never, ever been required to produce privileged documents in whose creation these nominees have been involved. Was the Senate ignoring its manifest duties in all those dozens and dozens of previous Supreme Court confirmations over the decades? Or is this a partisan witchhunt?

Liberal special interest groups insist that they want to ensure that Judge Roberts will be sufficiently committed to protecting rights; yet to show that, they insist that the President who nominates him forfeit the rights of the Executive Branch. Rights for thee and not for me? Who's not respecting fundamental rights here?

It's hugely amusing to me that many of the same people who'd abrogate attorney-client and executive privileges here think reporters ought to be able to shield law-breakers. Perhaps Judge Roberts should leak his privileged documents to Judith Miller, huh?

I can think of absolutely no better provocation for the Republican leadership in the Senate to employ the "nuclear option" than a Democratic filibuster based on such a transparently bogus ground. I believe that the American public does have an adequate understanding of attorney-client privilege to appreciate just how fundamentally wrong this "Estradification" would be, and the Dems will lose big not just on the vote count, but in the eyes of the public. Surely the Senate Democratic leadership is not that stupid, but if they are, I'd say, "Bring it on!"
7.23.2005 7:39pm
NickM (mail) (www):
Roberts was nominated and confirmed before for the D.C. Circuit Court of Appeals without these materials being requested by members of the Senate. While not legally binding, this is very damaging for the Democrats in the court of public opinion if they demand these documents now.

In the long run, persistently holding up confirmation for judicial office due to executive branch refusal to waive privilege for internal legal memoranda would lead to an unwillingness by talented lawyers with aspirations for judicial office to enter executive branch service. After all, if you wanted to be a federal judge, why would you go to work for an agency where your service would make your eventual confirmation very difficult or impossible (especially if the pay were significantly lower than at other jobs you could do)? One might as well hang out a sign at the Department of Justice that says "Law Review need not apply".

Nick
7.23.2005 7:59pm
Adam (mail) (www):
For his DC Circuit confirmation, Roberts could always state that the role of an intermediate appellate judge required adherence to precedent. That tells us nothing about his view of the importance of precedent about ascending to the Supremes.

That said, I'll set my bar like this: the only SG/DOJ memos that the Senate has any right to see are those which the White House itself consulted in determining whether to nominate him. For those documents, privilege has already flown out the window, as Roberts has never been the attorney for this administration.
7.23.2005 11:14pm
Bill Dyer (mail) (www):
Adam, with due respect, the privileges at issue -- attorney-client, work product, and executive -- are institutional, and belong to the Executive Branch and the Office of the Presidency, not to Bill Clinton or G.H.W. Bush individually.

Were that not true, then by reviewing documents created by the prior administration, all new administrations would waive attorney-client and other privileges as to everything -- meaning that not just the Senate, but all litigation opponents of the federal government (through its Executive Branch) could demand production of all such documents. The next al Queda defendant could read the Clinton Administration DoJ's confidential files.

Whether it's under the "control group" test or any of the other variations that state and federal courts have used to define the class of persons whose institutional access to privileged documents doesn't waive the privilege, the current Administration didn't waive privilege by reading what past ones had written. You're just wrong on the law, friend, and upon even a moment's reflection, none of us could want the law to turn into what you've proposed.

But as a matter of principle, I think you're also wrong. There's nothing in the Constitution, nor in the history of the confirmation process for judges or others requiring Senate advice and consent, that says the Senate is entitled to see every piece of paper that the President and his staff have reviewed in selecting a nominee. Think how many Supreme Court Justices have been former Attorneys General; in not one of those confirmations has the Senate said, "We're entitled to everything this nominee saw or wrote as Attorney General because his client (the United States through the Executive Branch) had the benefit of that material in deciding upon his fitness." This isn't, after all, a pretrial discovery dispute where the Senate is entitled by rule to everything "reasonably calculated to lead to the discovery of admissible evidence."

Yes, the Senate can ask; but no, the Administration (and Judge Roberts) should not waive privileges. I would say exactly the same thing were we talking about John Kerry having nominated Walter Dellinger (Clinton's SG) to the Court; this goes far beyond partisan politics. And if the Senate Dems think this is worth going to the mats over for a filibuster, so be it -- bring on the nuclear option.
7.24.2005 1:49am
Bill Dyer (mail) (www):
Here, by the way, is the actual letter, sent by former Clinton SG Seth Waxman on behalf of every living ex-SG as of the date of the letter in 2002, from both political parties, going back to JFK's SG Archibald Cox; and I'm quite sure the only additional ex-SG as of today, Ted Olsen, would concur as well.
7.24.2005 2:21am
Russell (mail):
When I replied earlier, I put "privileged" in quotes because I didn't think (and still don't think) that this question is governed by the traditional rules of the attorney-client privilege. Bill is of course correct that the privilege belongs to the government in its official (and ongoing) capacity, not an individual administration, and clearly applies relative to any third party claim. By the same token, however, the Senate could also be viewed as the "United States" for this purpose, and thus merely another arguably authorized representative of the same client seeking access to the papers --- and in such a case, there would be no waiver of the privilege if the documents were shared within the privileged circle (and also no legal claim of privilege among co-parties). I don't know if the argument would be the same under, for example, the deliberative process privilege, and it clearly would not be under the executive privilege (which explicitly is assertable against Congress, although I don't know if other conditions of the doctrine can be satisfied here).

But even if we adopt a formal privilege lens, my earlier point (nicely paraphrased by Adam as the "dog whistle" argument) would still apply. To the extent that the privileged information has been disclosed to non-governmental actors, any attorney-client privilege (and I assume, without checking, any other governmental privileges) would have been waived. So if the government wants to protect SG memos --- which I fully agree it should be allowed to do --- it should ensure that they are not disclosed for non-governmental (e.g. political) purposes, even when supposedly done in confidence.
7.25.2005 11:37am
Bryan DB:
My recollection is that one branch of the government cannot claim the "privilege" against another, though I'd have to dig to find proof. But, it makes sense, since they're all the same "party" (United States). Also, the "privilege" only applies to what the client (Executive) tells the attorney (AG), correct? So there's no privilege for Bush to waive, unless we're asking ROberts to provide communications from the President. The AG's writings would fall under "work product," and that privilege is not absolute. But, my feeling is that everything after the first sentence is moot: the Executive branch can't claim the privilege against the Legislative branch.
7.25.2005 1:16pm
Joshua Karstendick (mail) (www):
I don't understand why communications between the White House and its counsel is privleged.

The President and his staff aren't the ones paying for these lawyers; we are. Why shouldn't we have the right to view the documents?

If they're not classified for security reasons, what have they to hide? Someone mentioned that secrecy is necessary so that lawyers may present various points of view, including some troublesome ones such as arguing in favor of torture or against Roe v. Wade. But in the case of the latter one, most reasonable people, i.e. those not part of pro-choice lobbying groups, recognize that Judge Roberts was merely doing his job as Deputy Solicitor General, arguing the administrations views and not necessarily his own. Why not give the Senate all such information and let them decide for themselves?

If lawyers fear retribution for arguments they have to make while working for an administration, perhaps they shouldn't have taken the job. Surely, they knew what they were getting into and they agreed with the majority of the administration's viewpoints.

If the President would like attorney-client privlege, he can pay for his own lawyer. The products of White House counsel working on the taxpayers' dime should become publicly available — doubly so when it will aid in the fufillment of the Senate's responsibilities.
7.25.2005 1:53pm