Friday, July 29, 2005

Privilege and the Roberts Documents

There's a very interesting discussion over at the Conspiracy regarding the precise nature of the privilege being claimed to shield John Roberts's work in the Solicitor General's office from Senate review in connection with the upcoming confirmation hearings. Eugene is wondering whether the White House is specifically claiming that the documents are protected by attorney-client privilege. I can't add much to the discussion, but I will say that when I heard the White House was releasing the White House Counsel documents and not the SG documents, I thought the reporter must have had it backwards.

It seems to me that if there is a privilege to be claimed -- especially an attorney-client privilege -- it would more naturally extend to documents prepared in the Office of the White House Counsel, which is, by definition, counsel to the President. In other words, the Presidency is the client and, hence, the party entitled to assert the privilege. I think there's a marginally better case to be made for release of the SG documents, where the "client" is the government as a whole (or, perhaps, the executive branch), and not just the Presidency.

That said, I tend to think the better privilege argument for both categories of documents is two-pronged. First, there is an executive privilege. Second, and closely related in purpose, there is a deliberative process privilege. Both privileges, as I understand them based on my time in the OEOB culling documents from productions to Congress on the basis of the privileges, are intended to protect the unfettered exchange of views with the executive branch and its agencies. In other words, it's not good policy to have advisors worrying about having their words thrown back in their faces during an unforeseeable investigation many years down the road.

I think it's a mistake to release either category of documents, not because they may provide fodder with which to scuttle a confirmation, but simply because of the precedent it sets. Admittedly, I have not had the opportunity to think about this very deeply -- unlike the guys at the Conspiracy, I have cases that occupy most of my time ;) -- but, based on my experiences in the White House, I just think this is a plain old bad idea. People won't think as far outside the box if they have to worry about being compelled to justify their every thought by folks whose vested interests lie inside the box.