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Friday, July 29, 2005

More on Sunshine

In this post the other day, I linked to a post at DailyKos that
points out that the OSG works for the US Govt, not the President, and that also refers to a Clinton-era 8th Circuit decision (flowing from Ken Starr's suite of litigation), which decision apparently established that there is no attorney-client privilege attached to the OSG's work. This is an interesting issue b/c Scott McClellan asserted the existence of such a privilege (mind you, not Executive privilege, but rather attorney-client) in a July 26 briefing.

I then argued that, quite apart from the positive legal question of whether there is an attorney-client privilege held by the WH, there are good normative policy arguments why there shouldn't be one. The arguments in favor of such a privilege have been making the rounds: you don't want a chilling effect, wherein OSG lawyers might hesitate to give honest advice because of fears (I guess) that their honest advice will prove politically damaging during later confirmation (or other) hearings. I don't doubt this possibility, and I don't think it is likely confined to conservatives or to liberals. Rather, my point in that post was that the OSG does explicitly political work in pursuing an Administration's legal views in the courts, so there is no reason not to have the ultimate oversight -- democratic oversight -- of OSG lawyers' work. I did (and still do) qualify this claim by suggesting that OSG docs should be kept confidential as desired by the appropriate Executive branch officials while specific cases are pending -- only afterwards (like, say, now with respect to Roberts and his OSG papers) should these papers be fair game for the Senate.

In comments to my post, my conservative friend Peter suggested that there is indeed such an attorney-client privilege, and that it is up to the WH to waive it (which I'm sure is true if such a privilege exists). Peter has also cited a well-known letter that all former Solicitor Generals signed during the argument over Miguel Estrada's nomination to the DC Circuit a couple years ago (it attended with Estrada's withdrawal after the Senate refused to vote in the absence of OSG document production). Not surprisingly, the ex-Solicitors General argue that there would, in fact, be the sort of chilling effect I described above.

I don't dispute that contention (surely they know better than I, in any case). But my argument didn't hinge on whether such a cost would accompany a sunshine policy. Rather, my argument is that that cost is worth paying. I think the nominations of Estrada and Roberts are compelling examples of why sunshine's benefits outweigh chilling's costs.

Estrada and Roberts are both lawyers who
  1. Were young or extremely young at the time they were nominated
  2. Nonetheless have long-lasting ties to the political right, allowing a good deal of cross-party asymmetry in available information regarding their views
  3. Have left little in the way of written evidence on their judicial philosophies, either generally or with regard to important past cases
  4. Were nominated to important courts having a close balance on key issues
In the absence of other bases on which to form opinions, I think it would be irresponsible for the Senate not to seek relevant documents from work at the OSG, which is, after all, likely to be very telling concerning just the issues about which Senators should be most concerned in evaluating judicial nominees.

Chuck Schumer's NPC speech ably makes the case that the relevance of such documents varies with the amount of other information available to the Senate. If the documents aren't produced, much greater importance will and should attach to Roberts's testimony in the Judiciary Committee.

Again, all of these points are policy, not legal, arguments. (I note that Peter has kindly provided a link to a law article making an opposing normative argument to mine.)

With respect to the legal issues Armando raised on DailyKos, Eugene Volokh has a very interesting post. Basically, Volokh suggests that
  1. There are other conceivable privileges here, most notably Executive privilege (which the WH has not asserted to date)
  2. The 8th Circuit case referenced above appears to be narrowly focused on criminal, grand jury issues (not surprising given its genesis). Volokh's reading is that the decision, while broad, is not so broad as to imply that there can be no attorney-client privilege in this case. Of course, that doesn't mean that there need be no a-c privilege, but it certainly doesn't forbid one.
This is an interesting legal question, which may well not have a clear legal answer at present.


Anonymous Bu$h Ate My Baby said...

This may be my favorite of the postings you have made -- well articulated.

Two comments on the 8th Circuit case. First a small one -- I think it involved WH counsel, not OSG.

Second, and more importantly, I think it addressed a completely different issue, of whether a government attorney can be compelled to hand over notes in a criminal grand jury proceeding. (If this relates to the Starr investigation, I assume the alleged criminality was perjury in a civil matter). While I have not found the 8th Circuit case online, I did find this excerpt which purpotedly shows the thinking behind their holding: "We believe the strong public interest in honest government and in exposing wrongdoing by public officials would be ill-served by recognition of a governmental attorney-client privilege applicable in criminal proceedings inquiring into the actions of public officials. We also believe that to allow any part of the federal government to use its inhouse attorneys as a shield against the production of information relevant to a federal criminal investigation would represent a gross misuse of public assets. . . .

An official who fears he or she may have violated the criminal law and wishes to speak with an attorney in confidence should speak with a private attorney, not a government attorney."

Thus, the issue presented here is really quite different from the present question. That's the danger in relying on "Armando" from Daily Kos. Someone not willing to dig a little deeper, or is not really well-versed in how a legal opinion may superficially relate to the same issue but in fact does not, can jump to the wrong conclusion and bellow oh, the hypocrisy. (I am speaking of Mr./Ms. Armando).

By the way, did you see the WSJ ed yesterday chastising the White House for handing over the 750,000 pages of Roberts writings that they did hand over, including some that he wrote as associate White House counsel? Frankly, I can see the arguments on both sides of this issue. But at this point, since they've handed over everything else, I'm not sure why they're holding back on what he wrote in these three years (or however long he was in the OSG office).

7/29/2005 8:14 PM  

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