Tuesday, July 26, 2005

Hasn't this been decided already?

Bushies are claiming "privilege" yet again:
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...

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."
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."

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.

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.
You must read the whole thing.


Blogger The Raving Badger said...

Absolutely agreed. What's good for the gander is good for the goose. Besides, this thing about the Federalist Society is straight up boondoggery. Scotty Boy's assertions he doesn't recall paying dues, etc. is the old political parsing game all over again. Let him have the nads RBG had when she was appointed under Clinton. This guy has been groomed for Day One of to go up for SCOTUS. Let him answer questions. Let him show the public for whom he would work what he is made of. We deserve that much.

9:53 AM  
Anonymous Anonymous said...


I go into more detail on this, and cite the revelant statutes.

Whatever privilege exists, it expired 12 years after Reagan left office with respect to Roberts' work in the REagan White House. Ditto for Bush I and the Solicitor General's office.

How do I know? Because that's what the Presidential Records Acts says.

11:08 AM  
Anonymous ebob said...

As one who worked in the Justice Department during the Clinton years I want to clear up the privilege issue from a legal point of view. The Eighth Circuit case you mention held (wrongly I think) that there was no attorney-client privilege between government lawyers and their clients, at least in the face of a grand jury subpoena. However, it did NOT address the issue of executive privilege; indeed the independent counsel argued that if the White House was to assert any privilege it had to be executive privilege. When people talk about "protecting the deliberative process" they are normally talking about executive privilege. Ever since Watergate there have been tremendous political costs to an assertion of executive privilege, but there is little doubt that it protects at least certain executive branch deliberative documents - at a minimum, advice to the president - and protects them from disclosure to Congress in the face of an assertion of privilege. Which is why it is passing strange that the White House has agreed to release documents from Roberts' time in the White House Counsel's office, but not from his time in the Solicitor General's office.

2:52 PM  
Blogger CJ said...

"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."

Yes, give him a chance, provided the electorate is also given a chance [via the senate] to know more about who is being put forward for a lifetime appointment to the highest court. They should not be allowed to slip in anyone with such a skimpy judicial record and then insist no other info can be gathered. I'm with Bill Scher on the necessity of a nominee having a clear record by which he/she can be judged:

"Dubya nominated John Roberts to the Supreme Court because Roberts is a hard-core conservative with little paper evidence of his ideology.

This is unacceptable. The American people should not be expected to support a lifetime judicial appointment of a blank slate. A lifetime judicial appointment should have a clear record of impartiality and fairness."

3:01 PM  
Anonymous Anonymous said...

The Attorney General was interviewed on the newsHour with Jim Lehrer tonight, and treated very gently. I wrote to them:

Subject: Gonzales, Roberts, Privilege and Knowledge

Dear Mr. Lehrer,

I watched this evening's interview with the Attorney General hoping for answers to a number of questions, but was disappointed. My questions are these:

1. According to http://nitpicker.blogspot.com/2005/07/hasnt-this-been-decided-already.html, the question of privilege for communication between the President and the Solicitor General's office was decided in the 8th circuit (http://www.ca8.uscourts.gov/opndir/97/05/964108P.pdf). What makes Roberts any different?

2. The Attorney General is practically alone among White House staff (and former staff) in commenting on the Leak Investigation. He has been before the Grand Jury, and the investigation is continuing: what makes him different?

3. The Attorney General's claim that his report of the leak investigation to Andrew Card was "old news" does not explain the widespread surprise. When and where was this previously disclosed?

4. When the Attorney General testified to the Grand Jury, did he tell them about his conversation with Andrew Card?

5. Following on from 4: There were press reports of the investigation days prior to the call from the Justice Department. When should the White House Staff have been told to preserve documents?

6. When did he find out that the Deputy Chief of Staff was involved in establishing Valerie Plame's role at the CIA with the press?

Now, I'm just an ordinary man-in-the-street, or perhaps a man-on-the-net, but we don't get close to these people who work for us: and this is what we want to know.

If you could find out for us, that would be great.

Yours sincerely,
Jason Fordham

8:35 PM  
Anonymous Anonymous said...

I've posted another question:

7. This week, the Pentagon has refused to comply with a Court Order that compelled it to release further photographs from Abu Ghraib, reportedly revealing child abuse and rape. What does the Attorney General think of the consequences of his advice to the Secretary of Defense?

9:12 PM  
Anonymous Anonymous said...


Executive privilege doesn't apply to the work performed by the White House counsel's office in past administrations.

There is no expectation of privacy for that work, because by statute all of those materials are subject to eventual disclousre under the Presidential Records Act.

This is the argument that, ironically, Scott McLellan made when the White House sanctioned the release of Roberts' Reagan administration work files.

Of course, the White House wasn't doing anyone any favors by "releasing" that matreial, because by statute they had no choice. And, wasn't even their decision to make.


6:32 AM  

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