Privilege at Stake With Nominees
Bush Aims to Reassert Presidential Power in Debate Over Roberts, Bolton

By Peter Baker
Washington Post Staff Writer
Tuesday, August 2, 2005

At the heart of battles over President Bush's nominations to the Supreme Court and United Nations is a broader -- and largely successful -- campaign to reassert executive prerogatives lost under his predecessor and limit public access to the internal workings of government.

In the case of both nominations, Democratic senators demanded certain documents from executive branch deliberations to help them evaluate Bush's choices, and he refused. The president got around Democratic opposition to John R. Bolton yesterday by giving him a 17-month recess appointment as ambassador to the United Nations. Now the two sides face a weeks-long stare-down over John G. Roberts Jr. heading into confirmation hearings after Labor Day.

The principle at stake is one that has been a source of friction over the limits of presidential power since George Washington. Under President Bill Clinton, multiple clashes with Congress, the judiciary and independent counsel Kenneth W. Starr chipped away at attorney-client and executive privileges on sensitive documents and conversations. But since coming to power, Bush has doggedly reclaimed turf that eroded under Clinton, asserting the power of his office to shield everything from energy policy deliberations to the papers of past presidents.

"For better or worse, the Bush administration has done a much more effective job than we did of protecting privileges," said Ronald A. Klain, a lawyer who served as chief of staff to Vice President Al Gore.

Clinton waged many battles over privileges but lost some of them in court and surrendered others in the interest of damage control. In a showdown with the Senate opposition over something like the Roberts papers, Klain recalled, a politically and legally weakened Clinton White House often would find a compromise to end the dispute.

"I have no doubt that if that had been us, we would have turned over the papers," Klain said. "I'm not saying that's a good thing; I'm not saying that's a bad thing. But whenever we walked up to the brink, we blinked. And these guys don't, and they're prepared to pay the price for it."

The fights over the Roberts and Bolton papers have demonstrated that the merits of presidential privileges often hinge as much on political interest as legal principle. Some of those who argued most vociferously against the use of privilege to withhold documents during the Clinton administration now find themselves on the opposite side, and vice versa.

Starr, for instance, regularly rejected privilege claims during the Whitewater and Monica S. Lewinsky investigations. But in the Roberts case, the White House cites a letter signed by all living former solicitors general opposing disclosure of internal working papers from that office -- including Starr, who held that post under President George H.W. Bush and was Roberts's supervisor.

"Although I agree the pendulum should swing back some, I find it ironic that the Republicans who caused the erosion are now trying to use the result that their tactics created as a weapon," said Jane Sherburne, who as a Clinton White House lawyer clashed with Starr over privilege.

The Republican view holds that Clinton was the one who abused privilege in trying to protect himself in a criminal investigation. Yet Democrats who expressed outrage at attacks on privilege seven years ago now complain when Bush asserts it. Sen. Patrick J. Leahy (Vt.), the ranking Democrat on the Judiciary Committee, said a week ago that "those working in the solicitor general's office are not working for the president, they're working for you and me and all the American people" -- language reminiscent of GOP rhetoric whenever Clinton asserted privilege.

Regardless of who was to blame, Bush and Vice President Cheney came to office convinced that the presidency had been weakened under Clinton and resolved to reverse that trend. In October 2001, then-Attorney General John D. Ashcroft sent a memo instructing agencies to be more cautious in releasing data under the Freedom of Information Act. A few weeks after that, Bush signed an executive order allowing either the White House or former presidents to block release of their presidential papers.

Bush's determination to reinvigorate presidential power led to some of his tenure's most notable disputes. He refused to turn over information stemming from an energy task force led by Cheney in 2001, triggering a long legal fight that ended in victory for Bush in May when a federal appeals court threw out lawsuits challenging the confidentiality policy. Bush likewise refused to give the Senate papers related to appellate court nominee Miguel A. Estrada's service in the solicitor general's office. Rather than turn over the papers, Bush allowed the nomination to be withdrawn.

"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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