Privilege Claim May Not Apply to Roberts Papers

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.

Regardless of the legal force of this privilege, many lawyers -- Democrats as well as Republicans -- have said in recent years that it would be unwise to insist on disclosure of memos written by lawyers in the solicitor general’s office.

Three years ago, a letter to Senate Democrats signed by the seven living solicitor generals argued that it was a mistake for them to demand memos written by Miguel Estrada, a onetime lawyer in the solicitor general’s office who had been nominated by President Bush to the U.S. appeals court.

“Any attempt to intrude into the office’s highly privileged deliberations could come at a cost.... We do not think the confidentiality and integrity of internal deliberations should be sacrificed in the process” of seeking more information on Estrada’s views, they wrote.

The signers included Archibald Cox, who had served under President Kennedy, and Robert H. Bork, who held the post under President Nixon.

However, in previous Supreme Court nomination battles -- including Bork’s -- some materials from the solicitor general’s office were turned over to the Senate.

This conflict between the value of confidentiality and the public’s need to know parallels the recent battle over a journalist’s right to shield confidential sources.

While news reporters often say they must protect sources who have spoken to them in confidence, the Supreme Court has refused to recognize that privilege as a matter of law.

When special prosecutor Patrick J. Fitzgerald said he needed to know whom Time magazine reporter Matthew Cooper and New York Times reporter Judith Miller had spoken to at the White House, a federal judge ordered them to reveal what they knew. Miller refused and was jailed.

In contrast to this legal battle, disputes between the Senate and the White House over documents turn more on politics than on the law.

Three years ago, Democrats were clinging to a narrow majority in the Senate when they said they needed to know more about Estrada’s thinking before confirming him. They noted he had not been a judge and had written little.

However, the White House refused to disclose memos from his time in the solicitor general’s office. After a long stalemate, Estrada withdrew his nomination.

Roberts stands in a much stronger position. Republicans control the Senate, and they are not likely to press the White House to turn over more documents.

White House officials have not taken an entirely consistent position in the Roberts nomination. They agreed to reveal thousands of pages of files from his time as a young lawyer at the Justice Department in 1981 and 1982 and from his years in the White House counsel’s office under President Reagan between 1982 and 1986. But they have said they will reveal no files from his time at the solicitor general’s office from 1989 to 1993.

Meanwhile, the Democrats on the Judiciary Committee said Thursday they would make a “limited and targeted” request for documents on a few of the cases during Roberts’ time at the solicitor general’s office.

The solicitor general’s small team of lawyers within the Justice Department decides the government’s legal strategy before the Supreme Court. Most of the office’s attorneys are career lawyers, but it is headed by two or more lawyers who are chosen by the White House.

“When I served as principal deputy solicitor general, my sole client was the United States,” Roberts wrote four years ago, when he was seeking to be confirmed as an appeals court judge.

Led by Starr and Roberts, the solicitor’s general office pressed a conservative legal agenda in the high court. It is Roberts’ memos from that time that Senate Democrats are seeking as they evaluate his nomination for the Supreme Court.

In 1990, for example, Roberts argued and won a 5-4 ruling that made it harder for environmentalists to challenge the Reagan administration’s policy of allowing more mining on public lands. In that case, the National Wildlife Federation had sued on behalf of several members, saying the expanded mining violated environmental laws.

But the high court, in an opinion by Justice Antonin Scalia, ruled the wildlife activists did not have standing to sue because they could not show the expanded mining harmed them.

The next year, Roberts and his office intervened on behalf of Operation Rescue in a dispute over abortion clinics. The protesters had been sued under the Ku Klux Klan Act on allegations of conspiring to use force and threats to violate the constitutional rights of others -- in this instance, the right of a pregnant woman to have an abortion. The high court, in a 6-3 ruling written by Scalia, said the law did not apply to abortion protests.

And in 1992, Starr’s office intervened in a Pennsylvania case to argue that the Roe vs. Wade ruling should be overruled. The court disagreed, and in a 5-4 ruling upheld the right to legal abortion.

The Democrats said they were interested in whether Roberts fully endorsed these legal efforts or simply went along with a strategy devised by the White House.