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Live By the Starr, Die By the Starr

Fred Thompson was dutifully doing his job as official BushCo. water carrier for John Roberts' confirmation this morning on Press the Meat. He claimed that the White House is under no obligation to turn over documents that Roberts prepared while working for various presidents, because no recent administration, including Bill Clinton's, has done so.

“Conversations he has with his priest, conversations he has with his doctor or his wife or his client are matters that are off limits, basically,” said Thompson.

Matt at 1115.org calls bullshit:

Thompson knows full well that Roberts’ work product as a government employee isn’t covered by attorney-client privilege, ironically thanks to the man who hired Roberts to be his deputy, Kenneth Starr.

He points to an article by John Dean, who says the rules have changed since the Clinton administration, and it is ironically for this reason that Bush also had to hire a private personal attorney to represent him in TraitorGate:

The reason the privilege was created was to insure open and candid discussion between a lawyer and his or her client. It traditionally applied in both civil and criminal situations for government lawyers, just as it did for non-government lawyers. It applied to written records of communications, such as attorney's notes, as well as to the communications themselves.

But Starr tried to thwart that tradition in two different cases, before two federal appeals courts. There, he contended that there should be no such privilege in criminal cases involving government lawyers.

In the first case, In re Grand Jury Subpoenas Duces Tecum, former First Lady Hillary Clinton had spoken with her private counsel in the presence of White House counsel (who had made notes of the conversation). Starr wanted the notes. Hillary Clinton claimed the privilege.

A divided U.S. Court of Appeals for the Eighth Circuit agreed with Starr. The court held that a grand jury was entitled to the information. It also held that government officials -- even when serving as attorneys -- had a special obligation to provide incriminating information in their possession.

In the second case, In re Lindsey, Deputy White House Counsel Bruce Lindsey refused to testify about his knowledge of President Clinton's relationship to Monica Lewinsky, based on attorney-client privilege. Starr sought to compel Lindsey's testimony, and he won again.

This time, Starr persuaded the U.S. Court of Appeals for the District of Columbia Circuit to follow the Eighth Circuit. The court ruled that exposure of wrongdoing by government lawyers fostered democracy, as "openness in government has always been thought crucial to ensuring that the people remain in control of their government."

Based on these precedents, President Bush has almost certainly been told that the only way he can discuss his potential testimony with a lawyer is by hiring one outside the government.

Maybe it's this ease at dissembling that made Thompson's transition from politics to acting so seamless.

Sez Matt:

Refusing to release these documents and the likely lack of responsiveness during Roberts’ Senate confirmation hearings mirror the failed nomination of Miguel Estrada. Estrada was nominated to a lower court. Senate Democrats simply cannot allow this tactic to be successful at the Supreme Court level. A lifetime appointment to the highest court in the land is not something to be considered in the dark. The filibuster must remain an option in response to administration and nominee secrecy.

This was Harry Reid on Estrada in 2002:

Migrada Estrada has literally had no paper trail. Despite what some of my colleagues have said on the other side of the aisle, it is indisputable that Solicitor General memoranda have been turned over in the past. For example, the Department of Justice turned over Solicitor General memoranda for Bork, Rehnquist, and Easterbrook. On executive branch appointments, the Department of Justice turned over memoranda for Benjamin Civiletti.

While my colleagues may note that former Solicitors General have written a letter opposing the release of these memos, they cite no legal authority for keeping these memos secret. Basically what they say is it would impede these people from writing their opinions. It doesn't happen very often that these people are asked to serve on the second highest court of the land. It is not often they are asked to serve on the U.S. Supreme Court. But in cases in the past when that has occurred, with Rehnquist, Bork and, of course, another important appointment, Easterbrook, they were made available. And they should be made available here. (my emphasis)

With typical preemptory arrogance, BushCo. has already announced that it will not release all memos and documents Roberts wrote during his tenure with two Republican administrations. If the Democrats go supine over this after successfully defeating Estrada over the very same issues, sign me up to kick 'em around the block a few times, too.

posted by Jane Hamsher @ 7/24/2005 07:16:00 PM