Struggle Over Access to Roberts’ Memos Intensifies

The White House and Senate Democrats parried Wednesday over the Senate’s right to review documents from Supreme Court nominee John G. Roberts Jr.’s service in the first Bush administration, with the White House continuing to take a hard line on release of executive branch materials.

Democrats stepped up their demands for access to memos Roberts wrote while working as deputy solicitor general from 1989 to 1993, which they thought would help them determine whether he was a conservative ideologue. Roberts at the time was a political appointee working as principal deputy to Solicitor General Kenneth W. Starr.

“The president alluded to this work in his statements as contributing to his basis for selecting Judge Roberts as his nominee,” said Sen. Patrick J. Leahy (D-Vt.). “It clearly is appropriate that the Senate also be entitled to vital information the White House weighed in making its decision about this nomination.”

White House spokesman Scott McClellan said not even officials in the White House had reviewed documents from that period of Roberts’ career because they were covered by attorney-client privilege.

“We haven’t seen or reviewed any of those documents,” McClellan said. “It wouldn’t be appropriate for us to do so. That’s privileged information that is related to the confidential deliberative process between attorney and client.”

Senate Democrats said they found that assertion unusual, arguing that attorney-client privilege was a legal doctrine covering courts, not Congress.

Congressional staff from both parties suggested that it was more politically palatable for the White House to cite attorney-client privilege than to assert executive privilege -- a more formal doctrine that could potentially be challenged in court.

“In trying to hide behind attorney-client privilege, the White House is ignoring a long tradition of releasing executive branch documents that Congress needs to perform its constitutional duties,” said Tracy Schmaler, spokeswoman for the Democratic staff of the Senate Judiciary Committee. “The attorney-client privilege does not prevent the White House and the Department of Justice from turning over to the Senate documents that it needs to conduct a fair and open hearing on Mr. Roberts.”

Republicans accused Democrats of using documents as a subterfuge to combat the nomination. They also argued that even as a political appointee, the views Roberts expressed during that period of his government service would represent that of his client, the administration.

“If a lawyer defends a client accused of stealing a chicken, it does not then follow that the lawyer is a chicken thief,” said Sen. Mitch McConnell (R-Ky.), the Senate’s No. 2 ranking Republican.

Still, there were signs that the nomination was moving apace. A government official said the FBI was moving quickly to complete its background check on Roberts, and that the check could be completed as soon as this week.

But there was also a dust-up over the nominee’s tax records after the Washington Post reported that the White House had decided not to disclose them to the committee. McClellan declined to say whether those returns would be made available to the committee.

“There hasn’t been a request made, and let’s not get ahead of where things are in the process,” McClellan said.

The confusion arose from a change in White House policy in 2001. Previous administrations had reviewed each judicial nominee’s last three federal income tax returns, but had provided the Judiciary Committee only with an IRS summary stating whether the nominee had any serious tax issues. The full returns were held by the Justice Department and could be reviewed by committee investigators if necessary.

In what it described as an effort to reduce government intrusion into nominees’ personal lives, the Bush administration decided in 2001 not to ask nominees for their returns and instead reviewed only the IRS summary, which they shared with the committee.

However, McClellan said that the White House asked for and received copies of Roberts’ tax returns for the last three years.

Committee members were unaware of the change in policy because none of the previous lower-court nominees forwarded by the administration had any tax problems, and they never sought to view the full returns.

Democrats said the change in policy appeared unusual.

“It would seem that any White House, for its own protection, would want to know all it can about its nominees to the courts,” said David Carle, spokesman for Leahy. “The White House claims that it does full vetting of its judicial nominees, and people want to be able to count on that.”

Republican staffers said the question of whether the actual returns were on file with the Justice Department was beside the point because financial disclosure statements provided by the nominee were more extensive and useful.

“We have plenty of other information,” a senior Republican staffer said.

The question of how much access Congress should have to executive branch documents is a long-running debate in legal circles, and there is no consensus on whether attorney-client privilege can be invoked for government lawyers.

In general, the Bush administration has resisted congressional demands for executive branch documents. The refusal to turn over Roberts’ writings while he was deputy solicitor general tracks the hard line the administration took in the 2002 battle over Bush’s nomination of Miguel Estrada to the federal appeals court in Washington.

Senate Democrats had asked for memos that Estrada wrote as an assistant solicitor general from 1992 to 1997.

The White House refused, saying that turning over the documents would set a bad precedent, inhibiting government lawyers from offering candid advice.

However, the administration never formally invoked executive privilege.

Democrats filibustered the nomination, and Estrada eventually withdrew.

Some academics said the case for full disclosure was greater in the case of Roberts, who, unlike Estrada, was a political appointee helping shape Justice Department policy, and had been nominated to the nation’s highest court.

Others criticized the distinction the White House was drawing between documents Roberts produced while working as a White House counsel and those bearing on his tenure at the solicitor general’s office.

“The decisions are inconsistent,” said Stephen Gillers, a professor of legal ethics at New York University School of Law.

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Times staff writers Richard B. Schmitt and Peter Wallsten contributed to this report.