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Tuesday, July 26, 2005

Let the Sun Shine In

Armando makes a very interesting point here about GOP balking at releasing documents regarding Roberts's work at the Office of the Solicitor General:
  1. The OSG does not work for the President, but rather for the people of United States. Thus there can't really be a privilege governing the OSG's work, can there?
  2. According to quotes in the post linked above, the 8th Circuit ruled in the Clinton years that consultations with government (rather than private) counsel entail no privilege. Orrin Hatch applauded the decision.
Let me add a third point, about the fear of a chilling effect that Republicans have expressed when the issue of disclosing documents arises.

What is wrong with a chilling effect here?

If the OSG represents the people, why shouldn't its deliberations be subject to public understanding? I don't mean ex ante of arguments -- I can see why basic efficacy would require each side of a legal dispute to keep its strategy and tactics under wraps before the case has been adjudicated.

But afterwards? Why should Executive branch lawyers expect not to face the ultimate oversight -- political debate and electoral competition? Isn't that what Scalia and his minions are always telling us? You want a policy, win an election?

I'm not arguing that the law requires disclosure here; that's not my comparative (or even absolute) advantage. But the Senate -- and certainly members of the public and interest groups -- would be totally justified in demanding disclosure.

I don't want OSG lawyers to make their private arguments secure in the knowledge that only the governing Administration and its allies will be privy to them.

The alternative is the situation that appears more and more to be the case: the WH gets to send up a nominee whose legal and political views about which it can be confident, while everyone else is asked to take them on faith.

The flap over the attempts by the WH and Roberts to cover up his apparent Federalist Society membership is indicative. If they had just said, yeah, sure, he was a member once for a year or two, but it wasn't for him, then I think some people would have grumbled a bit, but no one would have held this in particular against him. Now it seems the WH feels it had something to hide.

What else are they hiding?

If they release the OSG docs, maybe we'll find out.

6 Comments:

Anonymous bu$h ate my baby said...

I think there's a slight confusion here with regard to the attorney-client privilege, which is a common confusion.

The attorney-client privilege is the client's privilege. It is not there to protect the attorney. When an attorney asserts attorney-client privilege, it is on behalf of his or her client. The client can always waive that privilege, in which case the attorney would have no justification in withholding the information. (There are some exceptions to the A/C privilege. If the attorney learns of intended future criminal conduct that will cause bodily harm, for instance, I believe in all jurisdictions the privilege can be removed. But those aren't relevant here.)

The reason for the privilege is to allow the client full and complete access to legal counsel, allowing full candor by the client. That is why it is the client's privilege, and why it can be waived (only) by the client. While you may not agree that such a privilege should exist, and there can be some arguments against it, it is pretty much settled public policy that such a privilege should exist.

That said, the White House may be selective in what it decides to waive its privilege on, and what it does not wish to waive its privilege on. And in that sense you are absolutely right, the White House could choose not to waive its right in a manner that benefits Roberts.

The basis for this comment is perplexing: "The alternative is the situation that appears more and more to be the case: the WH gets to send up a nominee whose legal and political views about which it can be confident, while everyone else is asked to take them on faith." How is this more and more to be the case? Or are you talking about appellate nominees not SCOTUS nominees? Who do you have in mind?

7/26/2005 5:20 PM  
Blogger Jonah B. Gelbach said...

I certainly never suggested, nor did I mean to suggest, that I was referring to a privilege of Roberts's.

Rather my point is that I don't see why (and apparently the 8th Circuit joins me in this lack of vision) the White House has any such privilege.

My post made it quite clear that the people are supposed to be the client -- and thus it is not the WH's business to waive or not waive privilege.

Perhaps I am wrong on the law, or perhaps the post I linked to got the facts wrong. But that's an argument you should make, rather than claiming that when I say X I have instead not X.

7/26/2005 5:28 PM  
Anonymous Bu$h Ate My Baby said...

I guess I got confused when you said "Why should Executive branch lawyers expect not to face the ultimate oversight -- political debate and electoral competition?" and "I don't want OSG lawyers to make their private arguments secure in the knowledge that only the governing Administration and its allies will be privy to them." To me, that sounded like you thought the lawyer had a say in A/C privilege. If that is not what you meant, then I stand corrected.

7/26/2005 7:40 PM  
Blogger Jonah B. Gelbach said...

ah, now i understand the issue. i was discussing the policy issue of whether it is a bad idea to release OSG lawyers' docs. The argument was made repeatedly during the Estrada nomination/drama that we can't have lawyers worrying about later consideration of their current opinions. My point was meant to be that that concern is (or should be) trumped by the argument in favor of open govt.

i see now why you thought those questions concerned the legal of issue of privilege -- which i'd discussed earlier, and a point on which i was certainly not conceding the Administration's position (i think that fact is clear from what i wrote).

7/26/2005 8:18 PM  
Anonymous bu$h ate my baby said...

When considering whether the OSG should be forced to release memos written by Roberts, it would be wise to remember what former solicitors general said about the subject in the context of Estrada nomination to an appellate court a few years ago. This is a CNN article from then:

WASHINGTON (CNN) -- All seven former solicitors general of the United States signed a letter to Sen. Patrick Leahy Tuesday urging him to drop his request for confidential documents in his probe of judicial nominee Miguel Estrada.

Leahy, D-Vermont, who chairs the Senate Judiciary Committee which considers the nominations of federal judges, has demanded Justice Department documents containing the internal recommendations made by Estrada when he served in the solicitor general's office during Janet Reno's tenure as Attorney General.

Late Tuesday Leahy's spokesman David Carle said the senator's office had not yet received the letter but will look for it Wednesday morning. Carle also defended Leahy's request for the documents.

Three of the solicitors general served under Democratic administrations, four under Republican presidents.

"Any attempt to intrude into the Office's highly privileged deliberations would come at the cost of the Solicitor General's ability to defend vigorously the United States' litigation interests -- a cost that also would be borne by Congress itself," the former officials said in a copy of the letter obtained by CNN,.

The Justice Department's solicitor general decides when and how to appeal cases on behalf of the government, and represents the interests of the entire government including both the Executive Branch and the Congress in federal courts.

"Although we profoundly respect the Senate's duty to evaluate Mr. Estrada's fitness for the federal judiciary, we do not think that the confidentiality and integrity of internal deliberations should be sacrificed in the process," the letter concluded.

Several weeks ago the Justice Department refused to release the documents. Carle defended Leahy's request, saying, "similar requests have been made on earlier occasions, and the Justice Department response to Senator Leahy several weeks ago grossly misstated the facts and ignored precedent."

Leahy argues that such records are needed to check Estrada's fitness, and that similar processes were followed in the investigations of Supreme Court nominees Robert Bork and William Rehnquist.

The letter was written by Seth Waxman, the last of three solicitors general under the Clinton administration. The letter was sent on behalf of Waxman, Walter Dellinger, and Drew Days of the Clinton administration; Kenneth Starr from the George H.W. Bush administration; Charles Fried who served under Ronald Reagan; Robert Bork who also served under Reagan; and Archibald Cox who served under President John F. Kennedy.

7/29/2005 9:38 AM  
Anonymous bu$h ate my baby said...

Here's a link to the actual letter:

http://news.findlaw.com/hdocs/docs/estrada/exslctrsgen62402ltr.pdf

Note the fantastic law firm on whose letterhead the letter is written.

7/29/2005 9:40 AM  

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