Yes, The Attorney General Can Have Privileged Conversations With The President

by Dan McLaughlin

Ben Rhodes is one of several Obama administration alums active on Twitter pushing Team Obama’s post-presidential narratives; others include David Axelrod, Dan Pfieffer, Jon Favreau, Jon Lovett, and Tommy Vietor. You’ll remember Rhodes as the maestro of the Obama narrative-building campaign to sell the Iran deal, a onetime aspiring novelist from a Master’s of Fine Arts program who bragged to the New York Times in 2016 about how easy the modern press was to manipulate:

“All these newspapers used to have foreign bureaus,” he said. “Now they don’t. They call us to explain to them what’s happening in Moscow and Cairo. Most of the outlets are reporting on world events from Washington. The average reporter we talk to is 27 years old, and their only reporting experience consists of being around political campaigns. That’s a sea change. They literally know nothing.”

Yesterday, Rhodes thought he had what you might call a “sick burn” on Mike Huckabee on Twitter:

 

Naturally, Rhodes’ interpretation spread quickly around Twitter. But Rhodes is wrong about the law and the nature of the attorney general’s job, and his mistake is all too common among people in D.C. who have forgotten how our constitutional structure works. The attorney general’s client isn’t the Department of Justice, and he serves the people only indirectly by serving the president. 

As a reminder, Article II of the Constitution charges the president — and no one else — with the duty to “take Care that the Laws be faithfully executed.” All Article II says about the rest of the executive branch is that “The President…may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices…he shall nominate, and by and with the advice and consent of the Senate, shall appoint…officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”  It says nothing about an attorney general or a Department of Justice, both of which were created by Congress to help presidents carry out this core constitutional duty under the control of the president, including the role of providing the president with their “opinion, in writing.”

For the first 70 years under the Constitution, that was the chief role of the attorney general: to advise the president about legal matters, sometimes confidentially, sometimes by formal written opinions that were intended to be part of the public record. As the Justice Department grew in the years after the Civil War, the AG became more consumed with running the Justice Department, and eventually the role of confidential legal advisor to the president was mainly taken up in practice by the White House Counsel, and the role of providing written legal opinions to the executive branch was housed in the Office of Legal Counsel within DOJ. But nothing in the law prevented the AG from being called to advise the president in confidence, and presidents have continued to do so from time to time.

The Reagan administration had many bitter battles with the Democratic-run House over what information the administration needed to provide to Congress, and in 1982, Ted Olson (later George W. Bush’s Solicitor General) drafted an OLC opinion on the various privileges available when the attorney general is called to testify or provide information to Congress. OLC opinions don’t have the binding precedential force of judicial opinions, but as the considered legal judgment of a co-equal branch of the federal government, they are typically accorded a lot of weight. Building on the Supreme Court’s landmark 1981 Upjohn opinion, which dealt with how the attorney-client privilege applies when the client is a corporation, the 1982 OLC opinion concluded that the AG is entirely justified in treating legal advice to the president in his official capacity as privileged and confidential under the attorney-client privilege:

In view of the [legal reasoning] in the Upjohn decision…it is likely that, in most instances, the “client” in the context of communications between the President and the Attorney General, and their respective aides, would include a broad scope of White House advisers in the Office of the President. The “functional” analysis suggested by Upjohn focuses on whether the privilege would encourage the communication of relevant and helpful information from advisers most familiar with the matters on which legal assistance is sought, as well as whether the privilege is necessary to protect and encourage the communication of frank and candid advice to those responsible for executing the recommended courses of action. A corollary to this expanded concept of the “client,” which reflects the realities of the governmental setting, is that the “attorney” whose communications are subject to the attorney-client privilege may, in fact, be several attorneys responsible for advising the “client” agency or division regarding the prudence and propriety of proposed courses of conduct. Thus, advice given by the various Assistant Attorneys General and their staffs may be subject to the privilege….As in the traditional attorney-client context, once the privilege has attached, only the client, in this case the President or some other high level official in the Office of the President who is responsible for receiving and acting on the legal advice, may waive it. Thus, for example, a FOIA request lodged with the Department of Justice for information communicated to the Office of the President by the Attorney General which is protected by the attorney-client privilege should not be honored unless the Office of the President consents to release of the information.

While the OLC opinion also discussed other ways in which the privilege could apply — such as when DOJ represents federal officials in a lawsuit — it was not limited to that context.

In 1998, the U.S. Court of Appeals for the D.C. Circuit largely endorsed the 1982 OLC memo’s reasoning in a case involving Deputy White House Counsel Bruce Lindsey’s ability to invoke the attorney-client privilege before a grand jury. The court rejected the independent counsel’s view that government attorneys cannot assert the attorney-client privilege, citing the OLC opinion and noting that ”The practice of attorneys in the executive branch reflects the common understanding that a government attorney-client privilege functions in at least some contexts.” Lindsey lost that case anyway, and the reasons why illustrate the limits of the privilege. First, the court found that “advice on political, strategic, or policy issues,” including the defense of impeachment proceedings would not be covered by the attorney-client privilege, which applies only to legal advice. To protect those conversations, the president would need to invoke executive privilege. Second, the court concluded that a grand jury could pierce the privilege because of its role in investigating crimes: “a government attorney, even one holding the title Deputy White House Counsel, may not assert an attorney-client privilege before a federal grand jury if communications with the client contain information pertinent to possible criminal violations.” Notably, however, the court’s analysis of the distinction between impeachment (which is a political process) and a grand jury investigation suggests that Congress may not have the same power that a grand jury has to compel government attorneys to disclose legal advice, because Congress has no power to prosecute crimes.

Whether Jeff Sessions could invoke the attorney-client privilege is another matter; the issue wasn’t pressed yesterday, and most of the conversations he refused to discuss with the Senate Select Committee on Intelligence were clearly political and policy discussions that would be protected, if at all, by the politically thornier invocation of executive privilege. In that sense, Huckabee’s take on the hearings was off the mark as well. But there’s no legal reason why, if Sessions offered legal counsel to the president, that counsel would not be protected by the attorney-client privilege. Next time, Rhodes should remember that not everybody out there is a 27-year-old who knows nothing.

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