Roberts' papers as deputy solicitor general covered by attorney-client privilege?

In connection with the confirmation proceedings of Supreme Court nominee Judge John G. Roberts, the Senate wants to look at papers Roberts wrote when he was deputy solicitor general under Bush I. (Hoping they might cast some light on Roberts’ judicial philosophy – you can’t tell much from his judicial career, he’s only been two years on the bench.) The Bush II Administration is refusing to release these on the grounds that they are covered by “attorney-client privilege.”

WTF? They’re making it sound like their hands are tied by the law. But the client can always waive attorney-client confidentiality. And in this case Roberts’ client was . . . the government. What’s going on here?

How do you get that from the quote? What they’re “making it sound like” is that if they release his papers, future solicitors will be held back in what they do, since they will feel that their work is actually confidential.

Now, whether that’s true or not is another issue. Of course the WH is going to set its first negotiating position as “no”. Then they can give in a lttle bit later and looks as if they’ve compromised. When you’re buying a house, do you place your first bid at exactly the highest price you’re willing to pay? Is it unethical not to do so? Of course not (to both questions).

Well, there’s a more innocent (and IMO more grammatical) reading to what Gonzales says, which is that the Government is not planning to waive the privilege for this type of document, because that would chill the candor of future memo-writers. I think this is a reasonable position to take, especially given the number of folks in the SG’s office, OLP, and OLC that end up getting nominated for stuff (a lot) and the number of those folks who hope to be nominated for something someday (100%, I’d wager). So I don’t read Gonzales as saying here that the Government cannot turn over these materials, I think he’s saying that the Government has a good policy rationale for refusing to waive the privilege.

Of course, that assumes the Government even has a privilege to waive. I haven’t read the Bruce Lindsey decision since it came out, but doesn’t that impair the Government’s ability to claim privilege? Or was it narrower than I remember?


Why would this “chill” anything? Don’t lawyers already operate under the assumption that their clients might choose to waive attorney-client privilege all the time? And if not, why not?

No, we don’t. We should I suppose, but we don’t.

But I beleve that in the specific office that Roberts’ papers came from, this is a more serious concern than it would be for any run of the mill lawyer elsewhere. People only get to the SG’s office if they’re top dogs. People who go to the SG’s office do so in hopes of it, inter alia, being a great place to position yourself for higher ambitions, such as a judgeship or a top legal appointment. Those people are ones who would be really affected by a government policy of turning every thing over because they have a strong and legitimate fear of it applying to them personally. They are also, amongst the whole fraternity, the lawyers of whom it is most important that they can give whatever opinion their researches lead them to – even if it’s unpalatable – and then let the politicals decide what steps should be taken. That’s the point of having politically-accountable supervisors, after all.


Quite frankly, I have very little sympathy for them. Or rather: perhaps their candor should be chilled if they think “candor” means “saying stuff I’d be ashamed of later”. We live in a world where potential employers happily look for “negatives” in any of an applicant’s writings they can get their hands on, however tangential to the job in question. Anything I say that a future employer can track down to me might cost me a job, and I doubt I’ll get much sympathy if I start whining about it. So why should people like Judge Roberts get a greater expectation of privacy, when the positions they’re being nominated for are of such greater importance?

It applies only to criminal investigations.

No, we don’t.

Candid and unedited communication between lawyer and client is essential.

In the government arena, I think Cliffy’s analysis is right.

It’s Judge Roberts’ CLIENTS that are seeking candor, unvarnished by political concerns, in Roberts’ answers to them.

Roberts - or anyone else - can’t do his job as an attorney as effectively if he has to serve both his own future interests AND his client’s current interests every time he writes something.

Why, if not to protect the client? My understanding of the privilege is that it’s purpose is to protect the confidentiality of information given by the client to the attorney, not vice-versa.

So why should attorneys have any greater expectation of privacy from their client when communicating to their clients then, say, I do from you when I mail you a letter?

I know of no other job on the planet where the employee gets to have any expectation of being able to serve his own future interests on the job at all, other than by doing the best job possible. Why is doing the best job possible not sufficient for government-employed lawyers in this respect?

We’ve been through this. There was a confirmation a couple years ago which was one of the top dogs in the Solicitor General’s office who was a hispanic gentleman being appointed to the D.C Court of Appeals IIRC. A lot was made of his refusal to answer questions during Senate hearings and most of his papers were being held back on exactly the “attorney-client privilige” grounds. Big long ugly thread, but ultimately it was revealed that other nominees had come from the SG’s office and some of their work while in that office had indeed been turned over to the senate to ease confirmation. So not only does it happen, but it has happened with this very administration in the past. I may see if I can find the thread and cites(if they’re still online) but it was long and involved december, minty green, and Dewey Cheatem Undhow rather extensively IIRC. Dewey made exactly the point about releasing those papers stifling creativity or a sense of confidentiality between the President and the SG’s office and straining those relations/effectiveness. I remember minty green’s response was “Sorry, don’t care.”


Yes, this is correct.

Because attorneys are dealing with matters that their clients wish to keep confidential. Of course, the client may later come to the position that his interests are best served by revealing the information. But as a general proposition, clients do tend to keep confidential communications confidential, for the simple reason that it usually remains in their best interests to do so.

Because the lawyer, government or otherwise, is in a unique position with respect to his employers. The lawyer is obligated to explore the limits of the law; the politician decides what application to make of the lawyer’s findings.

If a lawyer knows that his advice is likely to be revealed, it limits his effectiveness. Unlike any other job, the attorney’s best performance for the client may NOT be in his own best interests if it were exposed to public review. And it also chills the client’s use of the lawyer: he may not ask all the questions he otherwise would if he knew that his political opponents will be reviewing his strategic questions and plans down the line.

How does an attorney have an expectation of privacy if his opinion or writings can be revealed at any time that their employer wishes?

Can you give an example why an attorney doing the best job he can within legal and ethical limits would damage his reputation as a lawyer? Can you also give examples of the types of questions that a politician might not ask?

I am sitting here wondering why the Senate of the United States duly elected by the people can not be trusted with legal reports given by government lawyers. There, as far as I know, isn’t any classified information being used that the top legislatures in the Federal government don’t have clearance for. If there are questions being asked or advice being given that couldn’t also be asked or given to the Senate then that is a problem. Classify the proceedings if necessary but I don’t see a reason why the Senate shouldn’t have access to what they want.

Nothing in what you’ve said suggests to me that lawyers should have any more expectations of privacy from their client than a letter-writer gets from the letter’s recipient. Anything that a lawyer says to their client could be made public, if the client makes it public. The fact that clients typically don’t do that doesn’t remove the possibility.

I had a very long reply to this, but I’m not satisfied with it, and I have to go home for the day, so let me give the short reply: so what? If the lawyer “explores the limits of the law” ethically and well, what’s the problem?

I’ve been hearing for several days now that the political positions John Roberts fought for in court as a lawyer…say, the one where he said that Roe v. Wade should be overturned…shouldn’t be of any concern during his confirmation hearings, because that was just work he was doing for his client. The same comments were made about Alberto Gonzales regarding the torture memo: the memo doesn’t mean he’s pro-torture, he was just doing his job. If this is true…and I feel that it is…then why should a lawyer feel that exploring the limits of the law could be a black mark against him if that’s what it means to do his job to the best of his ability?

“Unlike any other job”? Please. If my employer tells me that I have to teach four courses in the coming quarter, I’m sure as hell not going to get any research done. Teaching the courses would definitely not be in my own best interests, but I doubt that my employer would think not teaching those courses would constitute a better performance.

Lawyers aren’t the only ones whose personal goals may conflict with those of their employers. You’ve done nothing to suggest why lawyers should have a special exemption from that conflict.

Ah, the crux of the matter. Of course, in any other circumstance we’d never even think to suggest that if the client doesn’t keep his mouth shut, it would discourage the client from talking.

But (a) let’s not forget that in this particular case those “political opponents” who are asking for the information to be released are also part of the client, and (b) let’s not pretend that one party trying to keep things from another party has anything to do with the ethics of lawyer-client communication.

“Expectation of privacy?” No, I agree an attorney does not have an expectation of privacy in his client communications.

He wouldn’t damage his reputation as a lawyer to those who understand the role of a lawyer. However, the country at large does not necessarily understand this, and if the goal is to make political hay, then his reputation among the general public is at risk.

During the Clinton administration, an e-mail was circulated claiming that the First Lady had defended the Black Panthers accused of murdering Alex Rackley. The e-mail strongly invited the conclusion that Mrs. Clinton’s politics and morals were just fine with helping murderers escape the legal consequences of their deeds.

Our system of checks and balances draws a distinction between the branches of government. The Senate’s interests are not always coterminous with the executive branch’s. It’s not a matter of classification - just as Senators may not wish their own discussions with their counsel revealed, so too do members of the executive branch not wish their strategic sessions and ruminations revealed. It’s not one big happy government in this instance.

:confused: Who do you mean? The Senate?

Again, I don’t understand what could possibly damage his reputation working as counsel for the government. The government is in the business of defending its presumably just laws. If there is something questionable going on in that process than it needs to be brought to light. If there is indeed something there that ignites widespread negative public opinion against him then I say great. The Senate will then be justified in not consenting to the appointment and the President will have to find a new Judge to appoint. The system works and a Judge that is not acceptable to the public is not appointed to the highest court.

And was ignored by all but the most partisan of hacks.

Presumably the discussions between Senators and their lawyers are of a private nature. The discussions between the AG or SG and the executive branch are matters of public policy. There isn’t any information that I can fathom which should be kept confidential from the Senate that is necessary in their legitimate activities. If there is a decision being made that politicians believe the American public would not approve of then by God, that information needs to be given to the American public.

I don’t think there should be any expectation of privacy for public officials operating in their official role. The executive branch serves the people and by extension the AG and SG serve the people, why shouldn’t the people be told what their public servants are doing?

Damn, Mtgman, that’s some pretty impressive thread recall you have there. To wit, I present another classic example of december-ist thought: Should Democratic Senators Filibuster the Estrada Nomination?. The privilege issue starts getting discussed on page 3.

For the record, I still don’t care about the chilling effect, at least when the government is the client. Government is necessarily of matter of public interest, which naturally elevates the public’s interest in access to the documents that make the wheels of power go 'round. Add to that the specific public and governmental interest in obtaning information about a Supreme Court nominee’s legal work and philosophy, and I believe there is a very persuasive case taht the privilege should be waived.

Anecdote: I was accused of a felony. Naively, I told my lawyer that I was indeed guilty. He said something to the effect of “I don’t give a rat’s ass if you’re guilty.” That is exactly the correct response for a lawyer to give.

As it happens, my crime fell into the “stupid yet understandable crap people do when they’re young” category, and he got it reduced to a misdemeanor. However, if I was accused of child molestation or murder, and he got me acquitted; further suppose that he ran for office ten years later, I testified to his words.

I think that would kill his political future.

:smack: Sentance garbled is; picture gotten you.