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The skillfully managed White House rollout of the Roberts nomination has suffered its first major mistake.

Senate Democrats are, of course, demanding every scrap of paper ever written by Judge Roberts during his time in government service. In an attempt to placate them, the White House has turned over thousands of documents from Roberts’s tenure as an adviser to Reagan administration Attorney General William French Smith and volunteered to make available a similar number of documents from Roberts’s time in the 1980s as associate White House counsel. In all, the White House says that 75,000 or more pages of documents will be made available for the Senate’s review.

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Senate Democrats, predictably, aren’t satisfied. They want everything Roberts wrote as principal deputy solicitor general, the Justice Department’s number-two lawyer before the Supreme Court, during the first Bush administration. Here the White House wants to draw the line. But it has regrettably undermined its own case with its initial release.

Bush’s spokesman Scott McClellan has tried to distinguish the to-be-released White House documents from the withheld solicitor-general documents. He claims that the White House documents are subject to a different legal regime that, as a result of congressional say-so, presumes disclosure, while the SG documents remain privileged. This claim is specious.

“The White House made a deliberate
decision to accommodate the Democrats
by making Reagan White House documents
available to the Senate.”

As President Bush’s own executive order on the subject of presidential documents clearly states, the Presidential Records Act “recognizes that . . . the President may assert any constitutionally based privileges” with respect to documents generated by the White House, including privileges for “communications of the President or his advisors (the presidential communications privilege); legal advice or legal work (the attorney-client or attorney work product privileges); and the deliberative processes of the President or his advisors (the deliberative process privilege).”

Therefore, the president clearly retains the ability to invoke privilege, at least regarding the documents from Roberts’s tenure in the Reagan White House. (For reasons known only to the Clinton administration, it waived executive privilege over a large group of documents some years ago, including Roberts’s documents from his tenure on Attorney General Smith’s staff. Thus, the Bush White House truly had no choice when it came to those documents.) No statute forced the president’s hand on the Reagan White House documents as McClellan contends. Indeed, if a statute attempted to do so, it would be an unconstitutional encroachment on presidential authority. The White House made a deliberate decision to accommodate the Democrats by making Reagan White House documents available to the Senate.

The decision was unfortunate. If anything, the records of the president’s closest legal advisers–those in the White House counsel’s office–are even more sensitive than those of a Department of Justice lawyer whose work may never cross the president’s desk. The White House’s analysis of where confidentiality is most needed is exactly backward.

“Having already given too much,
it should give no more.”

This does not mean, however, that the White House now has an obligation to release all of Roberts’s government documents. Having already given too much, it should give no more. Democrats claim that the SG documents are necessary to understand Roberts’s views on the law. Nonsense. Roberts’s approach to the law is discernible in the more than three dozen legal opinions he has written in the last two years. A fishing expedition through the sensitive deliberations of several Republican administrations will not provide any better insights into his legal thinking. Because the legal recommendations and draft briefs authored or edited by Roberts during his tenure as deputy SG are merely analysis or advocacy on behalf of a client (the United States), those documents are likely to say less about Roberts’s jurisprudence than his record as a judge.

At issue here is an important principle that the Bush administration has, until now, consistently fought for: the necessary confidentiality of deliberations at the highest levels of the executive branch. If the candid internal discussions of high-ranking government officials are regularly disclosed, those discussions will quickly cease to be so candid. This is exactly what seven former Democratic and Republican solicitors general wrote when a similar fight over Justice Department documents arose in the context of Miguel Estrada’s nomination to the D.C. Circuit Court of Appeals: “Our decisionmaking process required the unbridled, open exchange of ideas–an exchange that simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure.”

Senators should have plenty to read between now and the time of Roberts’s confirmation hearing in late August or September. The White House should hold firm, and add no more to their reading list.



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