Patterico's Pontifications

7/28/2005

More One-Sided Coverage of the Documents Non-Issue

Filed under: Dog Trainer,Judiciary — Patterico @ 7:25 am



This morning’s L.A. Times article on the Roberts documents controversy, Struggle Over Access to Roberts’ Memos Intensifies, makes a couple of jaw-dropping assertions. First:

Senate Democrats said they found that assertion [the Bush Administration claim of privilege] unusual, arguing that attorney-client privilege was a legal doctrine covering courts, not Congress.

Really? So if I say something in confidence to my lawyer, Congress can issue a subpoena to my lawyer and force him to disclose it? That’s a new one on me. And what do the legal experts say about that?

We aren’t told. Apparently nobody asked. (Or did they — and just not like the answer?)

Second:

The question of how much access Congress should have to executive branch documents is a long-running debate in legal circles, and there is no consensus on whether attorney-client privilege can be invoked for government lawyers.

Whaddya mean there is “no consensus” as to whether attorney-client privilege can be invoked for government lawyers? Why — because Democrats refuse to recognize longstanding principles of law?

I already linked Beldar’s post on this, but perhaps it’s worth quoting his case law:

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.

Attorney-client privilege can be invoked for government lawyers — period. Yet The Times says there is no “consensus” on that question. If the Democrats deny that the world is round, does that mean there is no “consensus” on the issue?

Again, no expert is consulted on this issue in the Times article. Curious.

And so the one-sided coverage continues . . .

14 Responses to “More One-Sided Coverage of the Documents Non-Issue”

  1. Perhaps a clearer comment would be “there has been controversy regarding who may invoke the attorney-client privilege for government lawyers.”

    IIRC, Bill Clinton hired only lawyers then tried to claim that every discussion, including those regarding presonal matters, was covered by privilege. Court said, no, the client is the Government and that is not always the same thing as the President.

    Kevin Murphy (6a7945)

  2. Kevin makes a decent point. The only other non-retarded argument I can tease out of the Times’s piece is that there may well be some legitimate controversy over what information the government itself has the right to keep confidential. It would be odd for the government to successfully invoke the attorney-client privilege to prevent the government’s lawyer from divulging anything the government itself has a duty to divulge (or odder still if it could make otherwise public records private simply by sharing them with its attorneys and seeking advice).

    Xrlq (816c74)

  3. I just thought of another potentially non-retarded explanation. Perhaps the real debate, which went way over Maura Reynolds’s head (as such issues generally do), is over whether or not the information in question was covered by the executive privilege prior to its communication to Roberts. As noted above, it’s a bit odd for a client to invoke the attorney-client privilege to prohibit disclosure by the attorney of information the client itself was obligated to divulge before it was communicated to that attorney. Or perhaps there is some issue as to who the client really was, namely, whether John Roberts represented the executive branch in particular vs. the federal government in general. If Roberts’s duties ran to the entire federal government, it would be odd indeed to invoke the attorney-client privilege to prevent disclosure to his own client.

    Xrlq (ffb240)

  4. “Senate Democrats said they found that assertion [the Bush Administration claim of privilege] unusual, arguing that attorney-client privilege was a legal doctrine covering courts, not Congress.”

    I think people might be getting confused because of the common sense principle that those who confirm a candidate should have the same information as those who nominate one.

    actus (cd484e)

  5. LAT on Attorney-Client Privilege: More Reporting, Please!

    I was going to post about the Los Angeles Times’ uncritical story about how attorney-client privilege might or might not apply to John Roberts’ work in the Solicitor General’s office, but Patterico does a better job than I could.
    My…

    Independent Sources (4f7430)

  6. The issue of attorney-client privilege in organizations is evolving and can get a bit dicey. It’s not that there’s no privilege, but, as a practical matter, who in the organization is entitled to assert it. The privilege belongs to the client, not the lawyer, so the client can always waive it.

    Two other doctrines are relevant: (1) Executive privilege. The President is entitled to take advice and exchange ideas with some assurance that his deliberations will be protected. (2) Attorney work-product protection. A lawyer’s notes, impressions, investigative memos, research and the like are to some extent exempt from disclosure.

    There’s an assumption floating around, in California enshrined in the Brown Act, that government should be open. Having been an elected official and a gadfly, among other things, I’m not so certain. Sometimes “open covenants secretly arrived at” may be preferable to “open covenants openly arrived at.”

    Grumpy Old Man (d61a37)

  7. Well, ya gotta admit that the lefties at the LAT are not giving an inch. Still pimping for the Dems as hard as they can. Layoff after layoff, subscriptions dropping rapidly, major advertisers bailing out, executive heads rolling once again, and it’s the same old story.

    Either they value consistency over everything else, or they are slow learners.

    GartS (acdc84)

  8. I think people might be getting confused because of the common sense principle that those who confirm a candidate should have the same information as those who nominate one.

    1) “People” are confused because “people” are partisan and refuse to confront simple and clear principles of law.

    2) According to the article, the Bush Administration has not reviewed these documents:

    “We haven’t seen or reviewed any of those documents,” McClellan said. “It wouldn’t be appropriate for us to do so. That’s privileged information that is related to the confidential deliberative process between attorney and client.”

    So you evidently agree with the assertion of privilege, which comports with your “common sense principle.”

    Patterico (ee2ab9)

  9. “So you evidently agree with the assertion of privilege, which comports with your “common sense principle.” ”

    Now I’m getting really confused. The executive branch can’t review these documents? Whose privilege is it?

    actus (cd484e)

  10. Quoth actus: “These go to eleven.”

    eddie haskell (8fd1a1)

  11. Xrlq and Kevin Murphy:

    I think the real issue may be, not whether the privilege exists, but whether the Senate can *overcome* it by showing a compelling need for documents in the course of exercising its constitutionally mandated duty of Advice and Consent. If I were a Democrat staffer (heaven forfend!) that’s how I’d frame the argument, because attorney-client privilege does not apply with full force to a government lawyer.

    This is quite a different issue from claiming that “attorney-client privilege” generally can be abrogated by Congress because it’s Congress; or by questioning whether government lawyers may assert attorney-client privilege. These are such dumb concepts that any responsible expert would have set Maura Reynolds straight — had she bothered to ask. (I’ll give her the benefit of the doubt and assume she didn’t — I generally prefer to attibute mistakes to laziness and ignorance where possible, rather than deliberate deception.)

    Patterico (3af0b9)

  12. Patterico–

    Obviously the claim that the Senate’s role requires the Executive (or either of the other two branches) to turn over every scrap of paper that might be relevant is silly on it’s face. No separation of powers would be left, and every appointment would be grounds for fishing expeditions.

    To test this, Leahy and his gang should demand Reynold’s work product while clerking for Justice Rehnquist, as well as any memos that might have passed between the Justice and Mr. Reynolds. If this doesn’t fly, why would anything else?

    Then they can go after Mrs. Reynold’s diary.

    Kevin Murphy (6a7945)

  13. I didn’t see any links to the LA Times, but of course some people were singing a different tune a few years ago.

    Veeshir (e06f00)

  14. […] 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.” […]

    Patterico’s Pontifications » Still More Misleading Claptrap from the L.A. Times on the Roberts Memos (421107)


Powered by WordPress.

Page loaded in: 0.0814 secs.