Tuesday, March 20, 2007

Privilege

The U.S. Attorney firings discussion continues.  The latest is the letter (found on Findlaw) of White House Counsel Fred Fielding in which he offers some terms for Senate and House Judiciary committees to question individuals presently in the executive or who previously held these positions. Whether these conditions satisfy the legislature remains to be seen.

But the real question is whether a privilege applies here.   Fielding states in his letter that "the President must remain faithful to the fundamental interests of the Presidency and the requirements of the constitutional separation of powers."  But is this a "presidential privilege" here, or more aptly a case of a "deliberative process privilege." And if so, should Congress be satisfied with the accommodations offered if they want people like Karl Rove to testify under oath?

Also of importance here is whether the government should be entitled to any privilege here? In the case of In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997), the court stated that "where there is reason to believe the documents sought may shed light on government misconduct, 'the privilege is routinely denied,' on the grounds that shielding internal government deliberations in this context does not serve 'the public's interest in honest, effective government.'" (citations omitted).   Fielding claims in his letter that "[t]hese documents do not reflect that any U.S. Attorney was replaced to interfere with a pending or future criminal investigation or other improper reason." But can all the emails be seen that way, and is Fielding the one to be making this call.

The real irony here is that this administration has been at the forefront of destroying privilege - something that has been a sore point for many groups like the ABA, NACDL, Heritage, and the Chamber of Commerce when it came to the issue of attorney-client privilege.  It has also been problematic when Attorney General Ashcroft allowed monitoring of attorney-client conversations in prisons, all in the name of terrorism.  Privileges play an important component in the proper functioning of our legal system, but one has to wonder here whether the privileged are getting a privilege, while others are left without one.

(esp)

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