Patterico's Pontifications

8/13/2005

L.A. Times Completely Misinterprets Yet Another Legal Opinion on the Attorney-Client Privilege as it Applies to Government Lawyers

Filed under: Dog Trainer,Judiciary,Media Bias,Morons — Patterico @ 11:23 pm



News flash for journalists: you aren’t lawyers. You clearly don’t have the slightest clue how to read a legal opinion. So just stop trying to interpret them — especially when your guidance is clearly coming from leftist activists who aren’t going to tell you the truth about what the opinion says.

Just stop already. I’m serious: you’re embarrassing yourself. Just stop.

We last ran into this problem here, when our old friend David Savage completely misrepresented a Sixth Circuit opinion addressing the lawyer-client privilege as it applies to government lawyers. The court repeatedly emphasized that its decision was limited to the criminal context, but Savage never mentioned that fact.

Today, Maura Reynolds makes the same error, but her mistake is (if anything) even more egregious than Savage’s prior error. That’s because the case she interprets strongly stands for the principle that the attorney-client privilege extends to government lawyers — yet ol’ Maura mistakenly says that the opinion “scoffs” at any such notion.

Sigh.

The complicated details come in the extended entry.

The key foolish language in today’s story is as follows:

Democrats also argued that the client of the solicitor general’s office is the American public, not the president, and quoted from a federal court decision that scoffed at the notion that the privilege extends to executive branch lawyers.

“Only a certain conceit among those admitted to the bar could explain why legal advice should be on a higher plane than advice about policy,” the U.S. Court of Appeals for the District of Columbia Circuit ruled in 1998 in compelling Bruce R. Lindsey, then the deputy White House counsel, to testify to a grand jury. “We do not believe that lawyers are more important to the operations of government than all other officials, or that the advice lawyers render is more crucial to the functioning of the presidency than the advice coming from all other quarters.”

Aargh. Maura, Maura, Maura, Maura, Maura. The decision you are misinterpreting can be read in its entirety here. This decision, which you claim “scoffed at the notion that the [attorney-client] privilege extends to executive branch lawyers,” also contains the following language, which sounds remarkably unlike “scoffing”:

Courts, commentators, and government lawyers have long recognized a government attorney-client privilege in several contexts. . . Although the attorney-client privilege traditionally has been recognized in the context of private attorney-client relationships, the privilege also functions to protect communications between government attorneys and client agencies or departments, as evidenced by its inclusion in the [Freedom of Information Act], much as it operates to protect attorney-client communications in the private sector.

Basically, Maura, the court is scoffing at the notion that you would claim it had scoffed at the notion of a privilege. You see what I’m saying?

So what about your other quote, about the “certain conceit” of “those admitted to the bar” who believe that “legal advice should be on a higher plane than advice about policy”?

Once again, Maura, you’ve made the same mistake that David Savage made in his own article botching a similar analysis: the key here is the involvement of a criminal grand jury. If you took the time to read the whole opinion, rather than allowing interest-group representatives to point you to selective and misleading portions of the opinion, maybe you’d notice this fact. Here is the entire content of the quote that you have yanked from its context in the opinion:

The Supreme Court’s recognition in United States v. Nixon of a qualified privilege for executive communications severely undercuts the argument of the Office of the President regarding the scope of the government attorney-client privilege. A President often has private conversations with his Vice President or his Cabinet Secretaries or other members of the Administration who are not lawyers or who are lawyers, but are not providing legal services. The advice these officials give the President is of vital importance to the security and prosperity of the nation, and to the President’s discharge of his constitutional duties. Yet upon a proper showing, such conversations must be revealed in federal criminal proceedings. See Nixon, 418 U.S. at 713 ; In re Sealed Case (Espy), 121 F.3d at 745. Only a certain conceit among those admitted to the bar could explain why legal advice should be on a higher plane than advice about policy, or politics, or why a President’s conversation with the most junior lawyer in the White House Counsel’s Office is deserving of more protection from disclosure in a grand jury investigation than a President’s discussions with his Vice President or a Cabinet Secretary. In short, we do not believe that lawyers are more important to the operations of government than all other officials, or that the advice lawyers render is more crucial to the functioning of the Presidency than the advice coming from all other quarters.

See that language I bolded, Maura? That’s the language that indicates that the key factor here is the involvement of a federal grand jury, investigating federal criminal proceedings. Here is more language from the opinion making this point extra-crystal-clear:

When an executive branch attorney is called before a federal grand jury to give evidence about alleged crimes within the executive branch, reason and experience, duty, and tradition dictate that the attorney shall provide that evidence.

Memo to the folks at the L.A. Times: if you ever find a case that “scoffs” at the government lawyer attorney-client privilege in a non-criminal setting, you be sure to let us know, mmmkay?

Until then, do us a favor and stop lying to us.

P.S. Confirm Them has more here.

12 Responses to “L.A. Times Completely Misinterprets Yet Another Legal Opinion on the Attorney-Client Privilege as it Applies to Government Lawyers”

  1. Patterico:

    I’m still not a lawyer (and I still won’t be ten years from now. Or even a decade!) But here is my legal analysis:

    Not only is what you say true, but I’ll tell you something else: if there is a criminal grand jury investigating the charge that an attorney conspired with his client to commit a criminal act, then that attorney’s communications with the client can be brought into court as evidence of that conspiracy.

    In other words, even private attorney-client privilege can be voided if there is a proper showing that the communication may be evidence of a criminal conspiracy.

    Am I wrong?

    By the way, speaking as a writer — and I am a writer, though I have never played one on TV — I notice that not only did Ms. Reynolds selectively quote… she deliberately concealed the fact that she was selectively quoting!

    Didn’t you notice? Look at what she wrote:

    “Only a certain conceit among those admitted to the bar could explain why legal advice should be on a higher plane than advice about policy,” the U.S. Court of Appeals for the District of Columbia Circuit ruled in 1998 in compelling Bruce R. Lindsey, then the deputy White House counsel, to testify to a grand jury. “We do not believe that lawyers are more important to the operations of government than all other officials, or that the advice lawyers render is more crucial to the functioning of the presidency than the advice coming from all other quarters.”

    Notice, however, that she quoted less than half of that first sentence from the opinion. Following the part that goes:

    Only a certain conceit among those admitted to the bar could explain why legal advice should be on a higher plane than advice about policy…

    — is a second phrase that reads:

    … or politics, or why a President’s conversation with the most junior lawyer in the White House Counsel’s Office is deserving of more protection from disclosure in a grand jury investigation than a President’s discussions with his Vice President or a Cabinet Secretary.

    In other words, Ms. Reynolds literally clipped out of her quotation the second part of the sentence that makes clear the context: a criminal grand-jury investigation.

    Pat, this cannot be accidental. From a writer’s standpoint, nobody but a Compleat Idjit would accept a quotation from any source that included an elipses without checking to see what was concealed behind those three dots. Unless she has the IQ of an eggplant, Maura Reynolds must have known that she was fraudulently misrepresenting the finding of the court.

    She must be discharged from her position.

    Even the Los Angeles Times should have some standard of truth; a reporter who willfully and with malice aforethought fabricates a story by deliberately misquoting a source is a disgrace even to the geniuses in Times-Mirror Square. It’s time for the Times to grow a spine and teach its reporters that it will not tolerate outright lying in the second-largest circulation daily in the United States.

    Dafydd

    Dafydd (f8a7be)

  2. LOL Dafydd.

    They’re not going to fire her. She’s doing exactly what they want; bending it to fit their agenda. They couldn’t care less about anyone on their staff “lying” to accomplish that.

    Means, ends, you know.

    Dwilkers (a1687a)

  3. Obviously journalists could be more accurate in reporting legal matters, if they checked with a lawyer. But lawyers cost too much to speak to.

    On the other hand, doesn’t a major media outlet like the LAT have a lawyer on staff, or at least on retainer? Like Dafydd above, I am not a lawyer, nor do I play one on TV, but I would not pretend to knowledgeably cite legal precendent without doing some research as to what the precedent actually was.

    Steve Skubinna (a7ef17)

  4. There’s alternatives to talking to lawyers too.

    Yale used to offer a Master of Legal Studies degree, intended for journalists who hoped to cover legal issues. That one year would give enough of a grounding for the reporter not to seem like a total fool.

    Angry Clam (a7c6b1)

  5. That’s amazing. Can we all admit that the LA Times is nothing more than an entertainment rag a’la Maxim or Stuff at this point?

    Nick @ HBR (31d467)

  6. Still does. Even explicitly states that “Candidates in the M.S.L. program are ordinarily… journalists seeking an intensive immersion in legal thinking so that they are better able to educate their audiences upon their return to journalism.”

    Angry Clam (a7c6b1)

  7. The LAT is a Tribune subsidiary. Crane H. Kenney is the Tribune’s “Senior Vice President/General Counsel and Secretary.” He’s a graduate of Michigan Law School, and his own background with the Tribune confirms that its general counsel has a staff that includes other lawyers. The Tribune’s board of directors also includes William Stinehart, Jr., a partner in Los Angeles-based mega-firm Gibson, Dunn & Crutcher. I don’t know who the LAT’s regular outside counsel is, but I’m quite certain that they have at least one such firm, and I’m quite certain that in exchange for even an outside shot at its business, dozens more firms would scream “Jump how high?!?” the very instant that the LAT said “Frog!” Plus, literally hundreds of law professors and individual lawyers would leap at the chance to be quoted, for free, in the LAT (in an illustration of the Latin phrase “De gustibus non est disputandum.”).

    So no, pleading lack of access to competent legal advisors is not a persuasive defense here.

    Beldar (006477)

  8. Beldar:

    I don’t know who the LAT’s regular outside counsel is, but I’m quite certain that they have at least one such firm….

    Huh, I would guess they had at least three: one to deal with tax issues, one for incorporation issues, and one for First Amendment issues.

    By the way, was I right or wrong in what I said in the first comment here, about times when even private attorney-client privilege can be breeched, if the attorney is being investigated by a grand jury for conspiring with his client to commit a crime?

    Dafydd

    Dafydd (f8a7be)

  9. Dafyyd,

    With respect to your initial post, I’ve read enough of your commentary to know that you know that the MSM distorts and misleads to fit stories into preconceived narratives.

    Of course they lie; we should take that for granted and expect it. But that is not a firing offense in the MSM. Getting off the preconceived narrative is the firing offense.

    Mark D (a9eb8b)

  10. Hi, y’all.

    I’m not a regular reader, but Pejman and others seem to love this place, so here I am.

    And I wanted to respond, politely if I can, to Mark D’s last comment.

    Carefully lift and open (it’s not easy; that’s why they also have the electronic version) any issue of the New York Times. Taking a thick black marker, identify each and every news story which contains both a statement of a liberal position and a conservative position.

    Then, taking a thick red marker, identify each article which factually reports something which supports a conservative position but not a liberal one. Do the same with a yellow marker for the liberal position.

    I think you’ll find that the opinion pieces by liberals are yellow (assuming they qualify as factual reporting, which I doubt they do); that the opinion pieces by conservatives are red; and that factual reporting tends not to be one or the other.

    If that’s the “narrative” you’re complaining about, I’ll chop it. The Facts are not liberal, but they are sure as heck not conservative. They are Facts, and twisting them is about a third of the fun us poor mortals get while we roam this Earth.

    But, “a firing offense”? Not to be blunt, so to speak, but are you high? How many journalists did you identify in the above search who print things that simply don’t conform to the liberal-left-Democrat platform? None? More than none? You betcha more than none.

    Compare that to the WSJ’s editorial page, and see how many liberal voices you find. Real liberals.

    Eh Nonymous (279778)

  11. Eh Nonymous,

    As for the WSJ, and especially the WSJ editorial page, one might conclude that an unexamined open borders policy is slightly left of center (although John Fund is beginning to sweat, but not because of the principle or lack of principle supporting his open border psychosis). And one might also conclude that support for a foreign policy based on universal liberalism, as enunciated by Bush, is slightly left of center. But who’s to quibble? Your preconceived narrative is that the WSJ editorial page is irredeemably conservative, and therefore you cannot see, or refuse to see, liberal influences within its pages.

    As for the remainder of your post, I found it incomprehensible. If your point is that “facts” are neither liberal nor conservative, that is patently false. Any reporter can select facts, or de-select facts, as they wish. You assume a reporter gathers all the facts that are relevant and reports them. First, most journalists aren’t that smart, and don’t work that hard, or don’t take that kind of time. It’s much more likely that the facts as reported are “theory laden,” a term taken from the philosophy of science. To choose a theory is to choose those facts one will see; choose another theory and you will see other facts. This accounts for the “facts” that the NYT or LAT or WaPo tell you are important; in their worldview, such facts are important. If one has another worldview, then other facts (which the NTY doesn’t even see) are important.

    Of course, the narratives chosen by the NYT also determine which stories are deemed worthy of time and space. Some stories are just never covered at all; they simply don’t exist. Other stories, minor or irrelevant to most people, receive major space in the NYT (such as the protest against Augusta National Golf Club last year, which the NYT treated as if it were of global significance).

    And, of course, reporters are tuned in to their editors’ preconceived narratives. Thus, it is easy for them to hoodwink those same editors with bogus stories that are complete fabrications, an event that has occurred at both the NYT and WaPo.

    Mark D (a9eb8b)

  12. As for deviation from the narrative as a firing offense, I refer you to the case of Mark Yost, which has been covered by both PowerLine and TownHall. Mr. Yost, an associate editor of a Minneapolis newspaper, suggested in a column that the media coverage of the Iraq war could be improved and expanded.

    At Poynter, here’s the response from the managing editor of the Columbia Journalism Review (the following is abstracted from a column by Ms. Ham at Townhall):

    “Steve Lovelady, managing editor of the Columbia Journalism Review, a publication dedicated to the study and critique of news coverage, had this to say about the Yost affair (scroll down a bit):

    ‘This poor bastard has become the pinata of the day. … My guess is that by Monday Mr. Yost will be too busy standing in line outside the St. Paul unemployment office to engage in leisurely Internet debates. Which, frankly, is as it should be.’

    That’s right, a man charged with reviewing journalism thinks Yost should be fired for suggesting news coverage could be better. This type of reaction rather reinforces the media’s image as a philosophical and political monolith. “Step out of line and you’re fired,” is a sentiment to be avoided.”

    Mark D (a9eb8b)


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