Hasn't this been decided already?
The White House will make public the bulk of documents related to Supreme Court nominee John G. Roberts Jr.'s service as a lawyer in Ronald Reagan's administration but will withhold papers generated during his time as deputy solicitor general under President George H.W. Bush to preserve privileged internal deliberations, officials said last night. [Emphasis Nitpicker's]The Office of the Solicitor General, as others have pointed out, works not for the president but for the people of the United States. This was already decided legally during the Clinton administration. Michael Dreeben, a lawyer who worked (and, I believe, continues to work) in the office, recalled the case two years ago at Brigham Young University's "Rex E. Lee Conference on the Office of the Solicitor General of the United States"
(T)his case grew out of a subpoena that the independent counsel issued for notes that were taken of conversations between Hillary Rodham Clinton and White House attorneys in preparation for grand jury appearances and congressional appearances. The Office of the President asserted an attorney-client privilege. The District Court accepted [the assertion of privilege] in a kind of odd way, saying that Mrs. Clinton thought there was one at the time, and therefore she is entitled to rely on it. The Eighth Circuit reversed and said there is no attorney-client privilege for the First Lady or any other government official who consults with government counsel as opposed to private counsel.Conservatives were elated. The Washington Times said it was "serious stuff" for a solicitor general to "consider himself personally bound to be loyal to the wishes of the president" ("When the president says privileged, Justice agrees," June 10, 1997). The Clinton White House appealed the case and the Supreme Court refused to hear it, letting the Eighth Circuit's ruling stand. This decision was applauded by none other than Orrin Hatch, who castigated the Clintons for claiming privilege in an op-ed in the New York Times (Pay archive).
One central aspect of the Administration's strategy has been to withhold information based on spurious claims of privilege, force Judge Starr to negotiate and litigate, and then complain about the delay. The claim of privilege that wasted the most money and time came when Judge Starr sought notes made in a meeting between Hillary Rodham Clinton and Government lawyers. The President's claim of privilege over these documents was so specious that it was rejected out of hand by the Court of Appeals for the Eighth Circuit, and the Supreme Court declined to review the case. This two-year delay, however, seriously set back Judge Starr's efforts.So, are "Judge Starr's efforts" to prosecute a president for fellatio more important than the constitutional requirement of the Senate to consent to the president's choice for the lifetime appointment to the Supreme Court? Orrin seems to think so.
Democrats said yesterday they will demand that the Bush administration hand over internal legal memorandums written by Supreme Court nominee John G. Roberts Jr. while he was a government lawyer...I haven't argued for or against the Roberts nomination. I say give the guy a chance, but, for Pete's sake, no Democrat should allow Republicans to claim privilege now. As the Eighth Circuit said in its ruling, such privileges "are not lightly created."
Sen. Orrin G. Hatch, Utah Republican and former chairman of the Judiciary Committee, said yesterday he doesn't think "Democrats are going to get away with that this time."
"Democrats know that if they are going to play that partisan game again, in something where the stakes are this large with a person of this quality and who they know who is qualified to be on the court, the American people are not going to put up with it," he said after meeting with Judge Roberts. "And the administration is not going to put up with it."
Update: See this comment at DailyKos.
Update 2: Hesiod has more.
(T)he White House, with good reason, cannot simply stonewall production of those papers.You must read the whole thing.
The reason is that it would be against federal law to do so.
Both the Freedom of Information Act, and the Presidential Records Act clearly mandate that most of the material at the Reagan Library be accessible to the public upon request and if the proper procedures are followed.
Now, President Bush issued Executive Order 13233 early in his first term, and made it more difficult to obtain the record. Although there is some serious question as to whether this executive order violates the Presidential Records Act.