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Which do we put under tighter wraps: advice to the president from his closest legal advisers or advice to the U.S. trade representative from his general counsel? You say advice to the president? Wrong. According to statute, almost all advice from presidential lawyers must be disclosed to the public within 12 years of the end of a presidency. But legal advice to a lowly agency head can stay under lock and key forever. My point? In a fight over a judicial nomination, the Bush administration has claimed privilege and prudence as reasons to withhold from the Senate internal memos written by Miguel Estrada while he served in the Department of Justice. Justice — which, after all, is just another federal agency — wrote last week: “Simply put, the Department cannot function properly if our attorneys write these kinds of documents with one eye focused on the effect that their words, if made public, might have on their qualifications for future office.” So Justice is claiming with a straight face that its lawyers need more confidentiality than the president’s. NO PEEKING This latest acting out of the Bush administration’s obsession with secrecy started on May 15, when Senate Judiciary Chair Patrick Leahy, D-Vt., sent a letter to the administration requesting memos that Estrada wrote from 1992 to 1997 while working in the Office of the Solicitor General — the section of the Justice Department charged with arguing cases before the Supreme Court. Bush has nominated Estrada for a seat on the U.S. Court of Appeals for the D.C. Circuit, arguably the second most important court in the nation. Estrada is known to be a conservative, but he has made few, if any, public comments reflecting his views on the role of judges or addressing hot-button issues that might come before him. So Leahy’s request to look at these memos is an attempt to discern how Estrada thinks about important legal topics. The chairman’s implied threat is that if the administration doesn’t hand over the documents, Estrada’s nomination is sunk. There’s no legal dispute per se here. Congress hasn’t issued a subpoena that might trigger one, and Justice isn’t claiming its privilege in court. So you’d think that Bush — like other presidents facing opposition to their judicial picks — might try to accommodate. The Justice Department has even released attorney memos in the past to facilitate nominations. Instead, the Justice Department informs Leahy that it “has a longstanding policy — which has endured across administrations of both parties — of declining to release publicly or make available to Congress the kinds of documents you have requested.” If the memos are surrendered for congressional inspection just this once, the argument goes, government attorneys — especially those in powerful offices like that of the solicitor general — will never again feel free to give their honest advice, for fear of exposure some time in the future. THE PRESIDENT TALKS It’s a fair point. As the Supreme Court stated in 1974 in United States v. Nixon (and as Justice quoted in its letter to Leahy), “Human experience teaches us that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” But it’s also a point that Congress largely chose to ignore, at least as far as advice to the president goes, when it passed the Presidential Records Act. That law, enacted in 1978, requires that most records from the White House be released to the public within 12 years after the president leaves office. “What has happened in presidential libraries is that after a certain number of years just about everything comes out, except for national security [material],” says Scott Nelson, a D.C. lawyer with Public Citizen. (President George W. Bush has issued new regulations delaying such releases, which Public Citizen is currently challenging in court.) This means that what government lawyers tell Bush today, and what they told Bill Clinton last year, will see the light of day relatively soon. Sometimes, presidential documents and advice come out even sooner. President Clinton found this out the hard way in his battles with Congress and Kenneth Starr during the impeachment battle. The 8th Circuit held that privilege claims did not protect Hillary Clinton and White House counsel from handing over notes of discussions about a grand jury subpoena from Starr. And White House attorneys were required to testify before grand juries, again in response to subpoenas from Starr. That’s all true for advice given in the White House, but not necessarily for advice given within executive agencies. Unfortunately, Estrada’s memos from his days in the solicitor general’s office are not, in any meaningful sense, advice to the president. Most of the memos that Estrada would have written in that job would have been advice to another government attorney — at the highest level, either the solicitor general or the attorney general. “I suppose that in some sense all attorneys in the Department of Justice are working for and indirectly providing advice to the president,” says Public Citizen’s Nelson. But it would be surprising, he adds, if any of Estrada’s memos were written directly to, or at the request of, anyone in the White House. Logically or not, the law offers more protection for such advice to the attorney general than it offers for advice to the president. That’s because agencies are not subject to the Presidential Records Act; instead they’re subject to the Freedom of Information Act. FOIA protects from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party … in litigation with the agency.” So if I send a FOIA request for Estrada’s memos on Supreme Court cases to the Justice Department today, or even if I send it 50 years from now, they can turn me down flat. Since Estrada’s memos aren’t subject to disclosure under FOIA now, and they’re not subject to disclosure under the Presidential Records Act later, the Bush administration probably has a legal basis to deny Leahy’s request. But the principle that Justice is relying on — that government advisers need confidentiality to do their work — has been proved false by experience. The government already releases reams of agency documents. It already releases presidential records. It even releases attorney advice to the president. The republic has not collapsed. The president is still well-counseled. To claim that releasing Estrada’s memos would court catastrophe is simply disingenuous. ANOTHER NOMINEE At bottom, there’s a very good reason for Leahy to see Estrada’s memos. With a man who is being considered for a lifetime appointment and who has put so little of his own views on the public record, it is vital to get a sense of how Estrada would approach his job. And the memos might be quite telling. The law contains myriad ambiguities ripe for interpretation, and memos can shed light on how lawyers approach that flexibility. That was definitely the case during the confirmation fights over another young, conservative lawyer: William Rehnquist. During the year that he clerked for Justice Robert Jackson, Rehnquist wrote a memo for his boss on a case that loomed large both on the Court’s docket and in the national consciousness: Brown v. Board of Education. Rehnquist’s memo, written while the case was pending before the Court and entitled “A Random Thought on the Segregation Cases,” stated in part: “I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues, but I think Plessy v. Ferguson was right and should be re-affirmed.” Plessy, of course, was the infamous 1896 case holding racial segregation to be constitutional. During Rehnquist’s confirmation fights in 1971 and 1986, his opponents raised the memo as a red flag. Rehnquist defended himself by claiming that he wrote the memo in response to a request from Justice Jackson for a discussion of the legal arguments favoring segregation. But several scholars — most convincingly, Richard Kluger in “Simple Justice,” his epic book on Brown v. Board of Education — have concluded that Rehnquist wrote the memo to express his personal views on the case. Kluger also wrote in 1975 that there was a marked consistency between the opinions expressed in Rehnquist’s memo and the justice’s votes during his first few years on the Supreme Court. And in all the years since, Rehnquist has hardly become a civil rights hero. There is, of course, no need to tar Estrada with Rehnquist’s record. If the Bush administration abandons its pretense to principle and simply lets Congress see the memos, Estrada can be judged on his own merits. Evan P. Schultz is associate opinion editor at Legal Times . His column, “Controversies & Cases,” appears every other week.

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