Privilege Claim May Not Apply to Roberts Papers
His ex-boss, Kenneth Starr, won a ruling against the protection during Whitewater.
By David G. Savage
Times Staff Writer
latimes.com
July 29, 2005
WASHINGTON — 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 high court. At the time, Roberts was the top deputy to Solicitor Gen. 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 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 Starr sought notes they had written.
Starr argued that the lawyers worked for the people of the United States, not for the president.
Democrats are making a similar argument in Roberts' case: 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. It resulted in a broad appeals court ruling that held that government lawyers did not have the same right to keep secrets as private attorneys did.
"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."
At issue in that case were notes taken by White House lawyers Jane Sherburne and Miriam Nemetz, who had met with First Lady Hillary Rodham Clinton after she appeared before Starr's grand jury. Starr sought a court order that would force them to turn over their notes, but the White House refused, citing the attorney-client privilege.
A federal judge refused Starr's request, but he appealed the issue to the U.S. 8th Circuit Court of Appeals. The court agreed with Starr that the attorney-client privilege did not shield the White House lawyers or their notes. "We decline to endorse the position of the White House where it is based on nothing more than political concerns," the appeals court said.
The ruling set off a furor in legal organizations, which had maintained that the attorneyclient privilege protected government lawyers as well. When the Clinton White House appealed the issue to the Supreme Court, the justices refused to hear the case. Only two justices — Clinton appointees Ruth Bader Ginsburg and Stephen G. Breyer — voted to hear the appeal..... |
