There is more shoddy analysis from David Savage in this morning’s L.A. Times, on the issue of the disclosure of John Roberts’s memos from when he was a Deputy Solicitor General.
Savage cites a case that he says supports the idea that attorney-client privilege may not apply to Roberts’s memos. The case’s holding depends critically on the fact that the attorney-client privilege for government lawyers must give way in criminal investigations. The court repeatedly emphasizes the criminal context, but Savage never mentions it. Rather, he makes it sound like the case applies to requests by congressional investigators as well, with an incredibly misleading discussion of the work product doctrine.
The distressing (and complex) details are in the extended entry.
The article sets the stage with these paragraphs:
WASHINGTON — The White House is citing the attorney-client privilege as the basis for refusing to reveal memos written by Supreme Court nominee John G. Roberts Jr. when he was representing the government before the high court. At the time, Roberts was the top deputy to Solicitor Gen. Kenneth W. Starr.
But it is not clear that this legal privilege shields the work of government lawyers from the eyes of government investigators — thanks to a legal ruling won by Starr himself, when he was independent counsel investigating President Clinton.
The article falsely suggests that Starr successfully argued that there is no privilege at all, because of the public’s right to know:
Starr argued that the lawyers worked for the people of the United States, not for the president.
Democrats are making a similar argument in Roberts’ case: that the solicitor general represents the public interest.
If Starr made that argument, it did not succeed. The panel did not base its ruling on the theory that government lawyers work for the people, so that everything they say should be disclosed to the people. Rather, the court repeatedly emphasized that Starr was undertaking a criminal investigation, and the privilege was being invoked to shield testimony from a federal grand jury. The court held that any attorney-client privilege for government lawyers would not be broad enough to apply in the criminal context, when a federal grand jury subpoenas the information:
We will address first the issue that the District Court found it unnecessary to decide: whether an entity of the federal government may use the attorney-client privilege to avoid complying with a subpoena by a federal grand jury.
. . . .
We need not decide whether a governmental attorney-client privilege exists in other contexts, for it is enough to conclude that even if it does, the White House may not use the privilege to withhold potentially relevant information from a federal grand jury.
The court repeatedly emphasized that it was the criminal nature of the investigation that mattered, describing the “true question” as whether the privilege applied “in the context of a federal criminal investigation.”
Even if we were to conclude that the governmental attorney-client privilege ordinarily applies in civil litigation pitting the federal government against private parties, a question that we need not and do not decide, we believe the criminal context of the instant case, in which an entity of the federal government seeks to withhold information from a federal criminal investigation, presents a rather different issue.
Savage never once explains in the article that the court found it important that the material was sought in connection with a federal criminal investigation involving a grand jury.
Having the privilege give way in such situations is consistent with precedents such as U.S. v. Nixon, in which even a constitutionally-rooted privilege like executive privilege had to give way in a criminal investigation. Cases invoking attorney-client privilege with respect to corporations, which the White House invoked as an analogy in the Starr case, were rejected because of the criminal context:
[T]he actions of White House personnel, whatever their capacity, cannot expose the White House as an entity to criminal liability. . .
. . . .
We also find it significant that executive branch employees, including attorneys, are under a statutory duty to report criminal wrongdoing by other employees to the Attorney General.
. . . .
We believe the strong public interest in honest government and in exposing wrongdoing by public officials would be ill-served by recognition of a governmental attorney-client privilege applicable in criminal proceedings inquiring into the actions of public officials. We also believe that to allow any part of the federal government to use its in-house attorneys as a shield against the production of information relevant to a federal criminal investigation would represent a gross misuse of public assets.
FOIA cases, which (arguably like the Roberts confirmation hearings) involve the different issue of the public’s general right to know, were distinguished as inapplicable, because of the criminal grand jury’s involvement:
Theodore Olson’s 1982 opinion concerning the confidentiality of communications between the President and the Attorney General relies significantly on Freedom of Information Act cases and Upjohn, which we believe are not helpful to the White House in this case, and does not purport to address the viability of the privilege in the face of a grand jury subpoena.
The court said that, assuming the attorney-client privilege applies to government lawyers — something the D.C. Circuit explicitly held true in a ruling I told you about in this post — then “a government attorney is free to discuss anything with a government official — except for potential criminal wrongdoing by that official — without fearing later revelation of the conversation.”
Does that sound like the Solicitor General’s office has to give up the Roberts memos?
The most misleading statement in today’s article is this one:
“We believe the strong public interest in honest government and in exposing wrongdoing by public officials would be ill-served by recognition of a governmental attorney-client privilege” when prosecutors or congressional investigators are seeking information, the U.S. Court of Appeals in St. Louis said. “Even if we consider a congressional investigation to be an adversarial proceeding, the only harm that could come to the White House as a result of such an investigation is a political harm.”
Okay, I am taking a deep breath.
You have to understand the background to see how outrageous this is. The White House had asserted a work product privilege for the notes, which the court rejected because the notes were not prepared in anticipation of litigation:
The work product doctrine sharply limits the access of an opponent to materials “prepared in anticipation of litigation or for trial.” The White House’s argument that its lawyers were preparing for the OIC’s investigation is simply unpersuasive; as we have stated previously, the OIC is not investigating the White House, nor could it do so. White House officials may be under investigation on account of their individual acts, but we know of no authority allowing a client such as the White House to claim work product immunity for materials merely because they were prepared while some other person, such as Mrs. Clinton, was anticipating litigation.(16) Cf. In re California Pub. Utils. Comm’n, 892 F.2d 778, 781 (9th Cir. 1989) (concluding that non-party to litigation may not assert work product doctrine).
As a fall-back position, the White House suggests that anticipated congressional hearings will suffice as well as anticipated litigation.
. . . .
[E]ven if we consider a congressional investigation to be an adversarial proceeding, the only harm that could come to the White House as a result of such an investigation is political harm. As in our discussion of the common-interest doctrine, we decline to endorse the position of the White House where it is based on nothing more than political concerns.
In other words, if the material sought by Starr was prepared in anticipation of congressional hearings, the work product privilege would not apply. Analogously, if the John Roberts memos that Democrat Senators seek had been prepared in anticipation of Senate confirmation hearings, those would not be privileged. But if they were prepared in anticipation of litigation, they would be.
Savage takes this language and makes it sound like any privileged memos must be disclosed if sought by Congress.
I have not heard whether the White House is asserting work-product protections as well as attorney-client privilege as to Roberts’s memos, but the language Savage cites would support the invocation of work product as to any memos prepared in anticipation of specific litigation — most likely all of them.
Does David Savage really not understand this?
At least the article finally mentions the letter I have repeatedly told you about, signed by the living former Solicitors General, opposing a similar request for documents relating to Miguel Estrada. But that comes deep in the article, long after the misleading claptrap about the Starr case.
This article does a terrible disservice to anyone who reads it and relies on it without reading the underlying case. It’s more shoddy work, and it’s starting to fit a pattern of hostility to Roberts on the part of this paper and this reporter.
UPDATE: Eugene Volokh looks at the issue and says many of the same things, in his typically restrained and understated style.