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.