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Privilege at Stake With Nominees

John G. Roberts Jr.'s papers are part of a debate over presidential privilege.
John G. Roberts Jr.'s papers are part of a debate over presidential privilege. (By Melina Mara -- The Washington Post)

"The president is committed and has a responsibility to preserve the deliberative process for this presidency and for all future presidencies," said White House spokeswoman Dana M. Perino.

"He is willing to pay a serious political price to assert and protect the constitutional prerogatives of the president," agreed Charles J. Cooper, an assistant attorney general under President Ronald Reagan.

In the process, according to watchdog groups and historians, government has become less transparent. Requests for information even on noncontroversial topics, they say, are routinely dismissed or delayed indefinitely. When Vietnam War scholar Larry Berman of the University of California at Davis sought intelligence briefings given to President Lyndon B. Johnson in the 1960s, the Bush administration blocked release on grounds of executive privilege. Berman has sued.

The dispute over the Roberts documents plows fresh territory. The White House agreed to release tens of thousands of pages from Roberts's time in Reagan's Justice Department and White House counsel's office because, officials said, those papers are covered by the Presidential Records Act of 1978, a post-Watergate law intended to promote eventual disclosure of presidential papers.

But the Bush team said the memos from Roberts's service as deputy solicitor general are not covered by the law and should remain confidential. The result has the White House arguing that those papers deserve more protection than those produced by the White House counsel's office, which directly advises the president.

Michael A. Carvin, another Reagan Justice Department official, said the dichotomy has a logic to it: White House counsel memos generally deal with policy matters and disclosure of them years later would be less damaging than solicitor general memos, which concern litigation deliberations that even now could provide ammunition for those suing the government.

"There's a clear and obvious distinction between work-product related to litigation and other internal deliberations," Carvin said. He added, "I don't think any of that stuff should come out either. I think all of that's very destructive to the process."

Democrats argue that other sensitive documents have been released during Supreme Court confirmation hearings, including during the failed nomination of Robert H. Bork, who served as solicitor general under President Richard M. Nixon. Yet such papers were not at the center of the Bork fight as they are now.

"There wasn't much focus on that," said Mark H. Gitenstein, who was chief Democratic counsel on the Judiciary Committee during the Bork hearings. "We didn't get into a big fight over those documents." In general, he added, there is no clear standard for what papers should be released in such circumstances. "It's been a movable feast."

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