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Charles Fried was nothing if not prescient. “I need hardly say how sensitive this material is, and ask that it have no wider circulation,” the acting solicitor general during the Reagan administration noted in a June 3, 1985, cover letter for a memo written by Samuel Alito Jr. Alito had argued in 17 concisely written pages that the government should file an amicus brief in an upcoming abortion case. More important, Alito, then an attorney in the SG’s office, provided his views on the best strategy for chipping away at Roe v. Wade. The White House has made clear — beginning with the nomination of John Roberts Jr. for chief justice — that it believes that SG memos are protected by attorney-client privilege and should not be released. But last week, Alito’s SG memo came roaring into public view, a seeming violation of established policy. But that wasn’t quite as it seemed. That’s because among the memo’s seven Justice Department recipients were several people, including former Deputy Assistant Attorney General for Civil Rights Charles Cooper, who worked outside the SG’s office. And all of Cooper’s papers were delivered to the National Archives in 1999 in a massive document dump of some 22,000 boxes of various DOJ departments from the 1970s and 1980s. “It just went with a tsunami of documents that was washed over to Archives,” says Cooper, now a partner at Cooper & Kirk. Explains National Archives and Records Administration General Counsel Gary Stern: “Once they get transferred to us, they’re our records now.” Stern says that even though the Justice Department had already cleared the documents for public use, all DOJ papers are still screened for “sensitive information such as personal privacy, law enforcement, and grand jury records” by a team assembled from the independent agency’s hundreds of archivists. Alito’s supporters are putting their best spin on a document that, according to the Senate Judiciary Committee’s ranking member, Sen. Patrick Leahy (D-Vt.), shows an “eagerness to engage in activism to change law with which he disagrees.” Nonsense, counters Don Stewart, the spokesman for committee member Sen. John Cornyn (R-Texas): “If there’s pictures of him stomping puppies, that would bother me. But this isn’t revelatory. This is a reaffirmation of what we already know.”
T.R. Goldman can be contacted at [email protected].

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