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Tuesday, July 26, 2005

Sen. Leahy's dead wrong in stating that there's no att'y-client privilege for Roberts' SG communications

I was astonished to hear Sen. Patrick Leahy say on ABC News' This Week program on Sunday morning that attorney-client privilege couldn't possibly cover John G. Roberts' communications while at the Office of the Solicitor General. I thought about blogging about it immediately, but then I thought, "That's so ridiculous, I'm not going to bother."

But then I read his comment quoted again in several different places — for example, in the NYT — without any of the MSM outlets who were quoting him simultaneously saying, "This is a preposterous and incorrect statement of the law":

On Sunday, Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, said lawyer-client privilege did not apply either to Judge Roberts's work at the Justice Department or to his work at the White House. Speaking on the ABC News program "This Week," Mr. Leahy said lawyers in the solicitor general's office "are not working for the president," but are "working for you and me, and all the American people."

So I'll say it: Sen. Leahy's statement is a preposterous and incorrect statement of the law, and it's not a close question. He's just completely full of crap on this.

"Courts, commentators, and government lawyers have long recognized a government attorney-client privilege in several contexts," the DC Circuit wrote in In re Lindsey, 158 F.3d 1263, 1268 (D.C. Cir.), cert. denied, 525 U.S. 996 (1998), and then proceeded to track through several such contexts. As part of that discussion, among many other resources, it quoted with approval a 1982 study written by then-Assistant Attorney General Ted Olsen which opined that

[a]lthough 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.

The DC Circuit took the existence of an attorney-client privilege covering government lawyers — one distinct from other privileges that might also apply, like executive privilege — to be a noncontroversial topic, which it indeed is; the Lindsey case mostly had to do with tougher questions about when that privilege might be waived or overcome by a showing of need.

So "courts, commentators, and government lawyers" have long recognized this — just not the former chairman of the Senate Judiciary Committee when Dems last had control of the Senate. As for the MSM mouthpieces that have been repeating Sen. Leahy's comment as if it weren't drivel, I'm pretty sure they all have lawyers available to them. Any lawyer with Westlaw or Lexis/Nexis could have found the Lindsey case in about 30 seconds (which is how long it took me). I'd say "For shame!" but they're obviously shameless, as is Sen. Leahy.

Posted by Beldar at 12:00 AM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Sen. Leahy's dead wrong in stating that there's no att'y-client privilege for Roberts' SG communications and sent a trackback ping are listed here:

» Bogus Document Controversy Begins from Patterico's Pontifications

Tracked on Jul 26, 2005 8:12:40 PM

» It's getting to the point.... from Media Lies

Tracked on Jul 26, 2005 8:21:19 PM


(1) crazy made the following comment | Jul 26, 2005 10:52:53 AM | Permalink

Well said ... but maybe we ought to accept his goofy interpretation because as a "representative of the people" every single scrap of paper he ever created ought to be subject to the same level of public review. You know all those memos about killing judicial nominees and all those records of leaks of classified information before he got kicked of the Intelligence committee.

(2) Fresh Air made the following comment | Jul 26, 2005 7:12:35 PM | Permalink


Very nice post. Par from the course from the third-dumbest senator from New England, and 96th dumbest senator overall.

Why don't you send this Hugh Hewitt and Confirmthem.com? Since my diet excludes the MSM, I hadn't heard about this. I would think the right side of the blogosphere would like to crush this meme before it goes too far.

(3) Ben made the following comment | Jul 26, 2005 7:14:59 PM | Permalink

Regretting your legal education? I do, every time I hear crap like this. Before, I was in ignorance heaven, blissfully unaware of how deeply dumb our elected representatives were. Now, the staggering stupidity (or deceit) of people entrusted with the enactment, interpretation, and (heaven forfend) enforcement of our laws has given me an ulcer. Thanks, Beldar, I blame you for bringing this to my attention.

(4) Fresh Air made the following comment | Jul 26, 2005 7:16:30 PM | Permalink

I hate to go off-topic, but I just realized how many dopes there are in the Senate from New England: Chaffee, Jeffords, Collins, Kennedy, Leahy, Kerry, Biden. Wow! That's real concentrated stupidity. Don't they have any good schools up there?

(5) Phil made the following comment | Jul 26, 2005 8:21:21 PM | Permalink

This concentration in New England is no accident. Michael Porter (Harvard Business School) says that clusters of businesses will often form around one another geographically. In this case, the "business" is liberal political thought.

(6) Andrew made the following comment | Jul 26, 2005 11:18:53 PM | Permalink

Hi Beldar:

I've posted on this subject here http://www.confirmthem.com/?p=947 with a link to you (I have no idea why it doesn't show up in your trackbacks). Also, you may be interested in this link http://www.usdoj.gov/olc/cdraftfin.htm There's lots of history there about how George Washington refused document requests from the Senate.

(7) Dafydd ab Hugh made the following comment | Jul 27, 2005 3:03:06 AM | Permalink

And of course, Leahy is also an attorney (Georgetown, 1964), as is Ted Kennedy (U of Virginia, 1959). Leahy, at least, actually practiced law before getting into politics (I don't know about Tedroe).

I have a different question... what on earth do the Democrats think they'll find in those privileged documents from Roberts' days as Deputy Soliciter General?

Do they think they'll unearth some "smoking gun" that proves Saddam really didn't invade Kuwait, and the elder Mr. Bush got us into that war "on a lie?" Do they envision that Roberts might have scribbled on the margin of one of those notes that he caught George W. smoking crack with Marion Berry in a EOB bathroom? To me, as a non lawyer, I cannot imagine anything of even the slightest interest in the privileged notes -- that couldn't be found just as easily in the actual written briefs and such for all the cases Roberts actually argued before the Court or before lesser courts... and please correct me if I'm wrong (I'm just an egg here), but wouldn't the actual court filings be available for anybody to read?

Since I'm not a lawyer, the closest analogy I can think of in my own life is a first draft for some novel I published. What would you find out by reading it? You'd find out why I write a bloody second draft, that's what you'd find out!

You'd discover plot twists that went nowhere, so I dropped them. You find some plot elements or even characters missing, because I added them when I realized they were necessary. You'd find inapt phrasing that I corrected -- I hope! -- in the final draft. But you wouldn't find any greater clue to my thinking from the early gropings for meaning than you would find, much better fleshed out, in the final draft.

I imagine in Roberts' case, you'd see a lot of scribbled notes like "check Lionel Pest v. Charnal House, see if it applies here," which was dropped from the final brief because, well, it turned out to be irrelevant. Or else it held the opposite, which is why the other guy brought it out in his brief, instead.

Am I missing something here? Is there some reason early drafts would hold some extraordinary insight into a lawyer's thinking, something that was absent from the final draft of the same document?

Why would anybody, even a Democratic senator, care about this stuff in the first place?


(8) Dafydd ab Hugh made the following comment | Jul 27, 2005 3:13:08 AM | Permalink

Ack, that should be Solicitor General, not "Soliciter." I thought it looked wrong.


(9) Dafydd ab Hugh made the following comment | Jul 27, 2005 3:17:16 AM | Permalink

Another another point: if being paid by the government means you work for the "people" and have no claim of privilege, then shouldn't prosecutors be able to get hold of the communications between public defenders and criminal defendants? And vice versa. Both DA and PD work for "we the people," right?

Am I misunderstanding Leahy's argument?


(10) Beldar made the following comment | Jul 27, 2005 8:32:27 AM | Permalink

Dafydd, you're right that there surely would be a huge amount of dull and irrelevant material that Judge Roberts created or was privy to when he was at the SG's office. But among the main duties of the SG's office is to make recommendations (that I believe in practice effectively amount to final decisions) for the DoJ and the Executive Branch and the United States as to whether and when to seek further appellate review in cases that the government has lost at the trial court or court of appeals levels. They also decide (or at least in practice, effectively decide, possibly subject to a theoretical veto by the AG) whether and when the federal government will file an amicus brief in a case to which it's not formally a party; such briefs are by far the most influential "outside opinion" any court can ever receive. I'm sure the Dems are hoping to find, for example, some internal memoranda or notes with regard to that kind of decision which they can use to paint John Roberts as "extremist," "out-of-the-mainstream," etc. And indeed, it's not unlikely that they could find something that appears controversial, or at least that would be easy to distort, because within the SG's office there are often (as I understand it) fierce and pointed arguments, pro and con, on these decisions; precisely because the SG's staff knows that their communications are privileged, they've probably spoken in them with extreme candor, probably using shorthand references that are easily misunderstood, and probably often playing "devil's advocate" in deliberately provocative ways. And again, by definition, the issues handled by the SG's office very closely correspond to the kinds of cases heard by the federal appellate courts and in particular by the Supreme Court -- i.e., close questions of law, questions that have huge political/social consequences, big dollar matters, and so forth.

And yes, you're exactly right: If Sens. Leahy & Kennedy are right and there's no privilege, then presumably all internal DoJ and other federal agency documents would become available to opponents of the U.S. in civil and criminal litigation. The Freedom of Information Act contains an express exemption designed to incorporate the attorney-client privilege into it, so the request couldn't come through the FOIA; but there are comparable, arguably much more potent means to compel disclosure of documents in both civil and criminal pretrial procedures. The result would, of course, be an absolute catastrophe. So if Sens. Leahy & Kennedy proposed to change the existing law to abolish, by statute, the attorney-client privilege for government attorneys, they'd be laughed out of Congress.

Again, this isn't a murky issue. It isn't a close question about which reasonable minds (legal or otherwise) can and do disagree. It's just absolutely wrong, every bit as bogus as insisting that the sun should and does rise in the west.

(11) Dafydd ab Hugh made the following comment | Jul 27, 2005 8:48:12 AM | Permalink


All right, I can sort of see the value to the Democrats of getting internal arguments that can, with come creative editing, be twisted to appear to be something they are not and make Roberts look like a Nazi. Though there sure seems to be a downside there, as the GOP would likely show the context and make the Democrats look like the extremists.

But as far as deciding whether to appeal, wouldn't the Deputy Solicitor General be mainly analyzing the liklihood of prevailing?

I have a hard time buying that he would write "there's no way we can prevail on the merits in this abortion case, but we must appeal anyway, because Donald Wildmon gave me my marching orders, and by God we'll bribe the judges, if necessary... Scaife promised us the dough!"

When I've had the unpleasant task of dealing with attorneys (no offense, but most non-lawyers really don't like going to court), it's always been of the "we can probably prevail on medical damages, but there's no way you're going to get punitive damages here" type of advice.

It still seems counterproductive for the Dems to do this, even given their goals.


(12) Beldar made the following comment | Jul 27, 2005 9:10:02 AM | Permalink

Likelihood of winning is indeed very, very important. But it's not at all dispositive.

It's entirely possible, and not uncommon, for an attorney to say to his client — in the course of private, confidential counseling that's covered by attorney-client privilege — "our chances of winning on appeal are only five percent, but because of the stakes, it's still essential that we appeal." Or to say, "Argument X is the secret key, and we think the way to persuade the likely swing vote, Justice Y, is to stress point Z." Or to say, "It's a good thing the other side didn't notice that we failed to meet the such-and-such requirement." This kind of information would be hugely useful to opponents of the federal government in on-going and future litigation.

Also, as I understand the internal dynamics, federal agencies typically have a pretty fair amount of discretion in handling (or directing the handling) of litigation at the trial court level, or in intra-agency adversary proceedings, and if nobody "sounds the alarm," their decisions aren't likely to be reviewed on a day-to-day basis by the AG's top staff. But agency personnel (including lawyers) may lack objectivity about the matters they're caught up in, and they may also lack perspective about how their agency's positions fit in with the big picture from the viewpoint of the entire federal government. Thus, as I understand it, sometimes the SG's office — which HAS to approve every decision to appeal on the government's behalf — takes a fresh look, from an independent perspective that takes into account the big picture, the government's continuing credibility, public relations, etc. It's often the SG's job to say, "We deserved to lose this case, let that decision against us stand." Or perhaps to say, "This is a close call, and we really don't want to appeal and lose, because then we'd have a higher level of precedent against us, and instead we ought to try to get Congress to change this." Or perhaps to say, "Yeah, we might win after investing another $3 million in expenses and opportunity costs, but it's not worth that expenditure for the benefits we're looking at." Or perhaps to say, "The agency doesn't want to appeal this, but they're not considering how it's going to affect eleven other agencies."

In short and in sum, it's the job of the SG's office not just to be an effective advocate, but to be a wise counselor. And to do that latter job, you absolutely have to be able to speak with absolute candor to your client, secure in the knowledge that both its questions and reactions and your advice will be protected by privilege (absent very, very extraordinary circumstances, e.g., the advice is being used for the commission of an on-going or future crime).

The Dems might indeed find something that they could use effectively (in a cynical sort of way) against Judge Roberts, especially when they're free to rip documents out of context for purposes of 30-second sound bites and Dowdified quotes. But what might be good for their partisan purposes would certainly be terrible for the Nation.

(13) Geek, Esq. made the following comment | Jul 27, 2005 9:43:13 AM | Permalink

It's kind of a moot point. There's enough in today's WP that should erase any doubt.

Roberts is Robert Bork without the fugly goatee, extensive paper trail, and candor.

He's a dream come true for your team, and he should face unanimous opposition (though not a fillibuster) from mine.

(14) Marc J made the following comment | Jul 27, 2005 1:52:50 PM | Permalink

All the talk about "What do they expect to find in the papers?" is missing the point. They don't want to see what is in the papers. The play here is to make a request that no one in their right mind would honor, and when the requestis refused, to scream" "What are they hiding?"

There is little chance of actually derailing the confirmation, so the game is to defame and discredit - not so much Roberts as the administration and the conservative side.

(15) craig mclaughlin made the following comment | Jul 27, 2005 2:22:33 PM | Permalink

Marc J is exactly right. This is one instance where Roberts IS like Bolton. The democrats don't expect to find anything nor to they expect to even get the documents, it's all about talking points before an ignorant and uncritical media.

(16) Geek, Esq. made the following comment | Jul 27, 2005 2:55:49 PM | Permalink

He advocated the legislative abrogation of Marbury vs. Madison. That's certainly counts for something.

(17) Patterico made the following comment | Jul 28, 2005 5:27:10 PM | Permalink

I agree with you, Beldar, but let me play Devil's Advocate.

The case you cite states that, in the context of a privilege held by a government attorney:

"More particularized rules may be necessary where one agency of government claims the privilege in resisting a demand for information by another. Such rules should take account of the complex considerations of governmental structure, tradition, and regulation that are involved." Restatement § 124 cmt. b. For these reasons, others have agreed that such "considerations" counsel against "expansion of the privilege to all governmental entities" in all cases. 24 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5475, at 125 (1986).

Although the holding of the case extends only to the need to disclose information to a grand jury, this language could suggest that when the Senate seeks information in furtherance of its constitutionally mandated duty to provide Advice and Consent, the privilege may not be absolute.

What say you to that?

(18) Beldar made the following comment | Jul 28, 2005 9:49:01 PM | Permalink

I completely agree that the attorney-client privilege is not, and should not be, absolute. Here, however — in very sharp contrast to, for example, the facts of the Lindsey case — there is no credible argument to be made that it should be overcome.

The very, very worst thing that can happen if the privilege is maintained is that senators will have to cast their votes, yay or nay, without the benefit of the privileged documents. Any senator is entitled to vote "nay" if he/she chooses solely on the basis of the documents being withheld; it's not as if they're going to be forced at gunpoint to vote "yay" while yet another gunman keeps them away from the treasure chest full of spicy-hot Solicitor General memoranda. If there aren't enough "yay" votes, the nomination will fail, and the President will have to decide on another nominee, while the voters will have to decide whether the senators' basis for rejecting this one merits their re-election.

Nor, by any means, are the senators left without other altogether adequate means for assessing the fitness of this nominee. He is not a cipher, and they will have him under oath in circumstances where he has a substantial incentive to answer their questions as fully and truthfully as he may, without violating privilege or ethical rules in the process.

So: The privilege isn't absolute, but it's very robust, it certainly applies here, and it hasn't been overcome. So say I, and so, I say, says the law.

(19) alf made the following comment | Jul 29, 2005 9:27:06 AM | Permalink

So why did the pres and vice pres get a personal lawyer?

(20) Milhouse made the following comment | Jul 31, 2005 11:09:28 AM | Permalink

They don't. Both the Solicitor General and the White House Counsel work for the Executive branch, not for George Bush. If GWB needs a lawyer for his personal business, he has to hire one. Which is why the privilege for Roberts's stuff from the Reagan and Bush I administrations rests with the current president, not with Reagan's estate or with Bush I; if he'd been working for them personally, they'd have all the papers, and the right to suppress or release them, and GWB wouldn't have anything to do with it.

That is why (though it hasn't been relevant to the current issue) GWB has access to all the papers produced by Seth Waxman as Bill Clinton's Solicitor General, and by Lloyd Cutler and Abner Mikva as his White House Counsels, but he has no access to anything produced by David Kendall, who was Clinton's personal lawyer in dealing with his various scandals. Waxman, Cutler, and Mikva all worked for the Executive branch of the USA government, while Kendall worked for William Jefferson Clinton.

(21) SDN made the following comment | Aug 3, 2005 5:19:21 AM | Permalink

Yeah, Geekie, never mind that the Constitution allows the legislative abrogation of Marbury v Madison, right?

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