Strengthening Constitutional Self-Government

No Left Turns

Roberts round-up

A number of female Democratic Senators announced that there is an abortion litmus test, though HRC was more politic:

"I share the concerns of my colleagues," Mrs. Clinton said. But she added: "I am going to wait and hear the answers at the Judiciary Committee," adding: "We’re speculating. I’m not going to be speculating."

Conspicuous by her absence from the podium was
Mary Landrieu, who said, "I was so pleased to meet such an outstanding nominee."

This LAT article suggests that Roberts’s work in the Solicitor General’s office may not be privileged, based upon a lawsuit filed and won by Ken Starr during the Whitewater investigations. I think the reporter gets it wrong. Here’s what the LAT says the Appeals Court said:

"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, the U.S. Court of Appeals in St. Louis said. "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."

Yes, if a prosecutor or Congressional committee were investigating possible wrong-doing, privilege wouldn’t shield it. This goes back to
U.S. v. Nixon, at least with respect to executive privilege. Here’s the entire passage from the opinion that the LAT reporter edited to make his point:

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 applicable in criminal proceedings inquiring into the actions of public officials. We also believe that to allow any part of the federal government to use its in-house attorneys as a shield against the production of information relevant to a federal criminal investigation would represent a gross misuse of public assets.

I supplied the emphasis to make it clear that the context of the Court’s recognition of the abridgement of attorney-client privilege in this case is a criminal investigation. Here’s another passage that seems to support the Bush Administration’s position:

Because agencies and entities of the government are not themselves subject to criminal liability, 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.

In other words, and, I suppose, not surprisingly, the LAt reporter mined the opinion for the snippets that, taken out of context, would be most damaging to the Bush Administration’s political argument. But in so doing, he only damages his own credibility, not to mention that of his newspaper, which has plenty of troubles of its own.

Update: Here’s a nice piece, via Get Religion, on Roberts’s Catholicism, focusing on his parish, which (by the way) could not be more different from the worship center John Kerry attends in Boston.

Update #2: The blogospheric consensus suggests that I’m right about the massive flaws in the LAT article. For much more lawyerly detail, go here and here. Hat tip: Ken Masugi.

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