Thursday, July 28, 2005

The Old Petard 

The White House is citing the attorney-client privilege as the basis for refusing to reveal memos written by Supreme Court nominee John G. Roberts Jr. when he was representing the government before the Supreme Court. At the time, Roberts was the top deputy to Solicitor General Kenneth W. Starr.

But it is not clear that this legal privilege shields the work of government lawyers from the eyes of government investigators -- thanks to a legal ruling later won by Starr himself, when he was independent counsel investigating President Clinton.

Usually, the attorney-client privilege protects private lawyers from being forced to reveal what their clients told them. It also shields their notes and memos from prosecutors. This rule of secrecy is seen as vital to the adversarial process.

But in 1996, Starr challenged the notion that White House lawyers who worked for Clinton could invoke the attorney-client privilege when he sought notes they had written. Starr argued that these lawyers worked for the people of the United States, not for the president.

Democrats are making a similar argument in the Roberts case -- that that the solicitor general represents the public interest.

The dispute was one of many legal tussles during Starr's six-year investigation of the Whitewater matter. However, it resulted in a broad appeals court ruling that held that government lawyers do not have the same right to keep secrets as private attorneys.

"We believe the strong public interest in honest government and in exposing wrongdoing by public officials would be ill-served by recognition of a governmental attorney-client privilege" when prosecutors or congressional investigators are seeking information, said the U.S. Court of Appeals in St. Louis. "Even if we consider a congressional investigation to be an adversarial proceeding, the only harm that could come to the White House as a result of such an investigation is a political harm."

| | Technorati Links | to Del.icio.us