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Democrats renew call for Roberts DOJ documents

[JURIST] All eight Democratic members of the US Senate Judiciary Committee [official website] sent a letter to Attorney General Alberto Gonzales Friday, asking him to reconsider his decision not to release documents [JURIST report] written by US Supreme Court nominee John Roberts [JURIST news archive] while he was deputy Solicitor General. In their letter [text], the Democrats argue that the requested documents are not privileged and that they should be released because Roberts was a political appointee, making high-level policy decisions:

These documents were prepared by attorneys in the OSG acting for the American people. We are requesting them for use by the Senate in the exercise of the Senate's explicit constitutional responsibility, and they are therefore not subject to the attorney client privilege. ... Indeed, former Senator Fred Thompson, who is helping the White House with this nomination, previously said of the attorney-client privilege that, "[i]n case after case, the courts have concluded that allowing it to be used against Congress would be an impediment to Congress' obligation and duty to get to the truth and carry out its investigative and oversight responsibilities." ...

It is instructive to look at the reasoning of the Court of Appeals for the District of Columbia Circuit, when that court declined in 1998 to recognize the attorney-client privilege claim of Deputy White House Counsel Bruce Lindsey. The Court emphasized that even the most sensitive conversations between the President and his top advisors may have to be revealed to a grand jury, and the Court further stated that conversations with legal advisers should be treated no differently:

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 ... is deserving of more protection from disclosure in a grand jury investigation than a President's discussions with ... a Cabinet Secretary [W]e do not believe 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. ... [I]t would be contrary to tradition, common understanding, and our governmental system for the attorney-client privilege to attach to White House Counsel in the same manner as private counsel. In re Lindsey, 158 F.3d 1273, 1278 (D.C. Cir. 1998).

This case makes clear that documents from the White House Counsel's office are not subject to the attorney-client privilege; as to the documents at issue here arising from the OSG, which represents the American people rather than the President specifically, the inapplicability of any privilege is even clearer. ...

You stated in your letter last Friday that OSG documents must be kept confidential in order to protect the free flow of ideas among attorneys within the office. It is important to note, however, that Judge Roberts was not a career attorney within that office. He was a political appointee in a leadership position, politically responsible for making high-level policy decisions. As such, he could not have expected, nor was he entitled to, any confidentiality protection that some argue should apply to the advice of career staff attorneys. ...
The Senators also note that the Department of Justice has released similar documents for past Supreme Court nominees, including Robert Bork and current Chief Justice William Rehnquist. Reuters has more.

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