Confidentiality and Separation of Powers

The Bush executive branch of government has overreached so often, and straight-armed proper oversight so regularly, one is skeptical about all its claims of privilege. That said, there is an important question about just which internal work papers of the White House — of any executive department — are privileged from outside scrutiny, and which are not. The distinction is important, and the recent battle over access to White House legal memos may provide the courts with the opportunity to clear up this recurring question.

Remember the confirmation hearings of now-Chief Justice John Roberts and -Associate Justice Samuel Alito? Both were questioned by Senate Judiciary Committee members about their earlier positions when working as attorneys in the executive branch. Were their earlier advisory writings protected by the attorney-client privilege of confidentiality? There is precedent, and the line between protected and unprivileged work is clear.

The basic idea is that government officials must be free to brainstorm and discuss internal matters free from observation. In order not to inhibit freewheeling debate and open discussions about novel ideas and unpopular views, employees need to have a comfort zone, free from being observed and questioned later. Once a government position is reached, that is public and should be available to all. Clearest example: What Supreme Court Justices say in their formal conferences and private office conversations should remain private. That encourages full and open debate. The justices’ opinions, and public proceedings, on the other hand, ought to be open to the widest public.

When I was a Justice Department attorney, and before that as a JAG attorney for the Air Force, I’d have been abashed if informal conversations between any colleague and me had been subjected to public scrutiny or sought by anyone in the public. That would have chilled important brainstorming that led to positions we took after freewheeling debate. The deliberations were private; the positions emanating from them were public.

One can favor disclosing information and sunshine laws, as I do, and still respect the confidentiality of deliberations inside government offices. Obviously, criminal behavior by any executive officials cannot be sheltered, as the Nixon tapes case ruled. There is a bright-line distinction between the privileged free flow of ideas and criminal behavior; if the Bush White House doesn’t see it, no doubt the courts will.

Ronald Goldfarb is a Washington/Miami-based attorney, author and literary agent. His new book, In Confidence, will be published by Yale University Press in March 2009.

Visit www.RonaldGoldfarb.com.