Ample Precedent for the Release of Memos from the Solicitor General’s Office

The Bush administration and its allies have frequently asserted that Democratic senators have no right to memos Estrada prepared while working in the Solicitor General’s office, claiming that a demand for such information is inappropriate, unethical, and unprecedented. In fact, the administration is trying to create a completely new policy of executive privilege, a policy that has no precedent and no legal standing. Estrada himself has told senators that he would be willing to provide senators with those memos and to discuss them but the Bush administration refuses to permit their release.

Some Estrada supporters recently held a press conference to “release” legal briefs from the Solicitor General’s office during the time Estrada worked there. This was a stunt without substance; the briefs were documents that many people had worked on and that had long been available to the public and the Senate. What the Senate has sought, and the administration refused to release, are memos written by Estrada that would make clear what positions he had urged the administration to take in important cases.

Sen. Patrick Leahy devastatingly refuted the administration’s claims in a February 12 floor speech during which he released correspondence between the Judiciary Committee and earlier Republican and Democratic administrations demonstrating that the same kind of information the Bush administration has declared off-limits has in fact been shared with senators on a regular basis to allow them to fully evaluate nominees to important judicial and other administration positions.

During that speech, Leahy said:

The Senate has requested, and past Justice Departments have provided, similar memoranda such as memoranda related to appeals, certiorari petitions, and amicus curiae – the decision to join a case as a friend of the court – written by attorneys of the Department of Justice. They have done this in connection with the nominations of Robert Bork to become Associate Justice of the Supreme Court; William Bradford Reynolds, Assistant Attorney General for the Civil Rights Division, to become Associate Attorney General; Benjamin Civiletti, nominated by President Carter to become Attorney General; Stephen Trott, nominated to become a judge in the Ninth Circuit; and then-Justice William Rehnquist, who was nominated by President Reagan to become Chief Justice – among others.
(Congressional Record, February 12, 2003, p. S2252)

Leahy also cited an example from the current administration: legal memoranda from the White House Counsel’s office released in connection with the nomination of Jeffrey Homestead to be the Assistant Administrator of the Environmental Protection Agency.

In addition, Leahy effectively demolished Republican claims that the documents Estrada wrote at the Solicitor General’s office were somehow protected by attorney-client privilege. He noted that Circuit Courts in the Seventh, Eighth, and DC Circuits have all agreed that attorney client privilege does not apply to a government attorney.

Moreover, Viet Dinh, who now serves as Assistant Attorney General for Legal Policy, said five years ago said that a government lawyer’s “employer is not a single person but the United States of America” and more specifically that the government as an employer included the U.S. Senate when it is trying to fulfill its constitutional duties. Yet now, Dinh and his colleagues in the administration are trying to take the Senate out of that equation and prevent senators from having access to information that would allow them to fulfill their constitutional duties.

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