Letter Seeking Roberts’ Papers Cites GOP Arguments

Democrats fired another salvo Friday in their increasingly heated battle with the White House over access to documents connected to Supreme Court nominee John G. Roberts Jr., citing Republicans’ past statements that attorney-client privilege does not apply to Congress.

In denying Democrats access to documents from President George H.W. Bush’s administration when Roberts served as deputy solicitor general -- in essence, the federal government’s No. 2 lawyer -- the current administration has cited attorney-client privilege and “deliberative process” privilege.

In a letter to the Justice Department, Democrats on the Senate Judiciary Committee quoted former Sen. Fred Thompson, who is now directing efforts to prepare Roberts for his confirmation hearings, and Sen. Orrin G. Hatch as making an argument similar to their own when they and other Republicans sought access to White House documents during impeachment proceedings against President Clinton.

“In case after case, the courts have concluded that allowing [attorney-client privilege] to be used against Congress would be an impediment to Congress’ obligation and duty to get to the truth and carry out its investigative and oversight responsibilities,” the letter quoted Thompson as arguing at the time.

Democrats also argued that the client of the solicitor general’s office is the American public, not the president, and quoted from a federal court decision that scoffed at the notion that the privilege extends to executive branch lawyers.

“Only a certain conceit among those admitted to the bar could explain why legal advice should be on a higher plane than advice about policy,” the U.S. Court of Appeals for the District of Columbia Circuit ruled in 1998 in compelling Bruce R. Lindsey, then the deputy White House counsel, to testify to a grand jury. “We do not believe that lawyers are more important to the operations of government than all other officials, or that the advice lawyers render is more crucial to the functioning of the presidency than the advice coming from all other quarters.”

This week, Judiciary Committee Chairman Arlen Specter (R-Pa.) declined to support Democrats’ demands, effectively removing any chance they could issue subpoenas or take other legal action to compel the administration to release documents.

The White House has promised to release as many as 65,000 pages of other documents, some on Monday. Democrats said those documents, most of which are from 1981 to 1986, would be less useful because Roberts was a junior lawyer at the time.

In his letter declining to support Democrats’ demands, Specter did not mention attorney-client privilege but said he believed “deliberative process” privilege -- the idea that internal executive branch deliberations should be kept confidential to ensure that presidential advisors speak freely -- was adequate to keep the solicitor general’s documents from the Senate.

Lawyers in the solicitor general’s office in the future “would understandably be reluctant or unwilling to give their candid views if they thought they would later be subject to public scrutiny,” Specter wrote.

Researchers who rely on access to government documents said “deliberative process” could cover any internal discussion, including those that officials might find embarrassing after they left office.

It “puts a cone of silence over the whole executive branch,” said Thomas S. Blanton, executive director of the National Security Archive, an independent nonprofit group that collects and publishes declassified government documents.

Democrats and Republicans alike acknowledge that the administration is trying to avoid using the term “executive privilege” -- a constitutional right that came under a cloud after President Nixon invoked it in Watergate and President Clinton invoked it during multiple investigations of his administration.

“In the good old days they just said ‘executive privilege,’ and now they are throwing out a lot of other phrases even though they mean the same thing,” said Mark J. Rozell, director of a public policy program at George Mason University and author of a book on executive privilege. “They don’t always say ‘executive privilege,’ but that is what they mean.”