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Martin Garbus

Martin Garbus

Posted: October 4, 2005 07:07 PM

Attorney-Client Privilege vs. the Constitution


During the nomination process of the new Chief Justice the White House, on the grounds of attorney client privilege, withheld documents John Roberts created while working for the Solicitor General. There is every reason to believe they will do the same for the new nominee. It was unconstitutional then and equally unconstitutional with respect to Harriet Miers. But it is even more important now. At least there was some public record to see what John Roberts thought prior to his appointment -- with Ms. Miers there is none.

Clause 2, Section of Article II of the Constitution states the President has the sole power to nominate, but the right to confirm is to be shared by the President and Senate. The Constitution says the President "by and with the ... consent of the Senate, shall appoint ... Judges of the Supreme Court."

As Hamilton wrote in Federalist Paper no. 67 the constitutional provision concerning the appointment of Supreme Court justices and other designated federal offices means "the ordinary power of appointment is confided to the President and the Senate jointly." Hamilton refers to the Senate's power concerning appointment as a "concurrent agency with the President." James Madison and the other framers were in agreement.

The Senate's constitutional right to access to information the President has is essential, and thus constitutionally mandated. The Senate cannot exercise its obligation without it. The law is clear -- there can be no meaningful consent if the consenting power has no knowledge of the facts.

The attorney-client privilege cannot override obligations put into the Constitution by the framers. The high court has dealt with this issue before. Chief Justice Warren Burger, on July 24, 1974, denied former President Richard Nixon's claim that executive privilege permitted him to withhold tapes and to refuse to go before a grand jury.

Richard Nixon gave two reasons. His first argument was that the separation of powers protected the Executive from the surveillance of the judiciary and his second that "the valid need for protection of communication between high government offices and those who advise and assist them in the performance of their manifold duties." His argument was rejected by a unanimous 8-0 Supreme Court." (Associate Justice William Rehnquist abstained).

The Court found that neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. But, the Court acknowledged, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the Court said "we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material."

The Court noted that normally a privilege does apply in criminal proceeding "to disclose what has been revealed in professional confidence." But, the Court said, the privilege does not apply, absent national security interests" because "one impediment that an absolute, unqualified privilege would place on the way is the primary constitutional duty of the total branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Article III of the Constitution."

Chief Justice Burger quoted precedent includes a 1953 case:

"It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers."

After a full review of the law, the Chief Justice said:

"No case of the Court, however, has extended this high degree of deference to a President's generalized interest in confidentiality. Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based."

Here too, as in the Nixon case, the claim of privilege conflicts with the Constitutional powers given another branch of government, the legislature. The need for a rule of law, said the Supreme Court requires that the privilege must yield to "develop all the relevant facts rather than uphold the privilege claim, which was in derogation of the search for truth."

Much has been made of the fact that other nominees did not have judicial experience. But they were public figures, governors, senators and academics who had openly expressed their views on a wide variety of areas, including those subjects that would ultimately find their way to Court. Ms. Miers worked for The White House for the last ten years, and prior to that with the State Lottery Commission and prior to that she was in private practice.

Justice Burger asked if there "is a public good transcending the normally predominant privilege of utilizing all rational means for ascertaining the Truth." He found, in the Nixon case, that the public good is served by the denial of the privilege -- that "everyman's evidence" should be made available to the people. That rationale resulted in the denial of the Nixon White House's claim. That same rule governs the Bush White House as well.

The denial of information in the case of Ms. Miers is even more troubling than Nixon's refusal. More is at stake. It is not only that Ms. Miers is replacing, probably for the next twenty years, the swing vote on the Court. A president sits for 4 years -- some justices have sat nearly 40 years. We had had 43 presidents but only 17 chief justices. More important is the setting of the precedent that any President can withhold information about an unknown nominee. The people, and the Senate, cannot be forced to make blind judgments about the most important members of one of the three branches of government. It allows the Executive to totally dominate two of the three branches of government. It makes the future nine members of the Court responsive to one man (or woman). It is not an overstatement to say it is the end of this democracy as we know it.

Ms. Miers' ultimate client, when working for the President, are the people of the United States. Constitutionally, it is to the people to whom she was ultimately responsible, and the Senate, the elected body of the people has the right to know what the President knows so it can exercise its constitutional power of consent.