The White House has rebuffed the requests of Senate Democrats to turn over Supreme court nominee John Robert’s papers dating from the time he was in the solicitor general’s office. Their reasoning is that it would violate attorney-client privilege. But when Whitewater Special prosecutor Ken Starr demanded similar papers from the Clinton White house, he successfully argued that attorney-client privilege does not apply:
The White House will have to find another excuse to withhold these papers, the current one does hold up under review of precedents.
It is no small irony that Roberts was the top deputy to Solicitor Gen. Kenneth W. Starr at the time the papers in question were written.
Welcome to the world of lawyers and the law. I’m sure there is some small technicality or loophole that can be exploited for yet another push back from the WH. This is how the game is played. The WH doesn’t need to win an appeal or anything, all they need to do is stall long enough to make the request moot. Similarly the WH is claiming that the Dems are requesting the documents simply to stall things on their side.
Surely there is a difference between the subpoena power of a special prosecutor and the authority of the Senate Democrats to demand these papers. I can’t see that a court would even take up the case as to the legality of the latter.
So, when you ask “should the WH…”, you can’t frame it as a legal issue. It’s a political issue, and the Democrats are free to vote the guy down if they feel they weren’t given enough info on him. In fact, I wouldn’t be surprised if some of the Democracts are specifically demanding stuff they know the WH won’t give them in order to have a cover story as to why they’ll not vote to confirm Roberts.
And the WH may have any number of reasons, mostly political, for not wanting to release the papers. They may not even be concerned about Roberts, per se, but about the next guy Bush appoints and the precedent that would be set if they repleased Roberts’ documents.
Ultimately, I suspect the WH will release some of the papers, and the negotiations wil continue until one side blinks.
But they are basing their refusal on legal grounds, the attorney-client privilege. Obviously they feel that they must justify their refusal by more than simple political objections.
Of course. I didn’t mean to imply that the real reasons the WH had for witholding the papers were the same as the stated reasons. Surely we don’t expect them to be explicit about their political motivations.
Still, the legal standing of a request from a special prosecutor is substantial different than that of a request from members of the Senate. I think it’s important to recognize that. These two cases are not the same.
But isn’t the client (the people) identical in both cases? If so, what difference does it make who is making the request?
As far as I’m aware, there is no law that changes who the client is based on the requester. It would seem like Congress, which is basically just a representative of the people, could, as the client, waive the privilege themselves, or at least have a lot more authority to do so than a special prosecutor.
Regarding the OP itself, I definitely think that all White House documents pertaining to his body of work in the legal field should be fair game. I’m somewhat torn as to where to draw the line outside of that. I’m hesitant to include any personal documents, as I don’t care if he sends love letters to some woman named Bobby Sue in Chicago, but if they could be construed to relate to his potential performance and ideology, then I lean in the direction that they should be released. Delineating that is difficult at best.
In the Starr case, the issue was notes taken by White House lawyers who had met with the First Lady after she appeared before the grand jury. Starr sought a court order forcing them the make their notes available. The Clinton White House sought to invoke attorney-client privilege. The circuit court ruled it did not apply; the White House lawyers were not advising a government official on matters of government action or policy. No attorney-client privilege existed under those circumstances for government lawyers.
In the present case, the issue IS work done by government lawyers advising government officials on matters of government action or policy. The privilege exists here.
(Naturally, the exeutive branch could waive it. But it exists.)
If past nominees with similar backgrounds have had their papers released, then yes. If not, then the White House would be under no obligation, but it still might be nice. Generally, the more information is out there about the nominee, the better.
But is Roberts’ “client” in such matters the “executive branch,” or the U.S. government as a whole? In the latter case, Congress should have the power to waive the privilege.
I could make an argument that it was the executive branch. But I’d be arguing, not believing. I think his client is the government, period.
That doesn’t settle the issue. There are plenty of things “the government” does through the executive branch, not the legislative branch.
However, even here, I agree that Congress should have the power to waive the privilege.
Note that this does not mean ONE MEMBER of Congress has that power. As with anything else “Congress” has the poweer to do, this should require a majority vote.
My attitude: sure, go ahead, and hand over everything. Just don’t let the Democrats retend tha tthis is anything but a desperration move.
CHuck Schumer & Co. are privately fuming, because their pal Ralph NEas screwed up royally. Neas was SURE that Edith Jones was going to be the nominee, and had tons of alleged “dirt” on Jones. Then Bush went and cheated, by nominating someone that Neas & friends weren’t prepared for, someone they hadn’t bothered to seek dirt on.
So, the Democrats are in a bind. They want desperately to find some excuse for rejecting Roberts, and Neas hasn’t given them anything. Hence, the demand for all of Roberts’ past documents.
Are they entitled? Sure- give them everything. But mock them while you’re doing it, because that’s all they deserve.
Bricker nailed it on the legal principle. There was no attorney-client privilege in the case of the Clintons because the WH lawyers there were advising the Clintons in their individual capacity, not as the executive branch. In the case of Roberts, there appears to be no question that the documents at issue were produced by him in the course of his legal representation of the executive branch. Hence, they’re privileged. Note that’s certainly also why Bush went out and got a private lawyer for Plamegate instead of relying on his usual legal fixer, Al Gonzales.
That said, the client (i.e., the executive branch) has the ability to waive attorney-client privilege at any time. I believe they should do so to the extent reasonably necessary to answer congressional inquiries related to Judge Roberts’ nomination and confirmation to the Supreme Court. The principles of open government certainly weigh in favor of waiving the privilege, as do the substantial interests of the Senate in considering the nomination and the public in knowing who will sit on the Supreme Court for the indefinite future.
