With Senate Judiciary Committee hearings on John Roberts still over a month away, a battle royale over the nominee's paper trail is rapidly developing. But despite White House protests to the contrary, the conflict may be less about protecting attorney-client privilege, and more about protecting the President's father.

First, a little background. As part of the confirmation process, Senate Democrats have requested documents from Judge Roberts' time in both the Reagan and Bush 41 White Houses. Yesterday, the Bush team grudgingly announced it would make Roberts' papers from his stint in the Reagan Justice Department (1981-1982) and later, White House (1982-86). But the Bush White House and GOP leaders in the Senate have balked at the Democrats' request for documents related to 20 of 300 cases involving Roberts during his time (1989-1993) as Solicitor General Kenneth Starr's chief deputy in the Bush I administration.

Republican leaders have been quick to respond, with Senator John Cornyn (R-TX) calling the Democratic request "moving the goalpost" and Mitch McConnell (R-KY) sniping, "I doubt that our colleagues have pored through those pages already, and yet they are hungry for more." Rick Santorum (R-PA) opposed even the release of the Reagan-era documents, citing "attorney client" privilege.

Roberts' work for Kenneth Starr during the term of George H.W. Bush involves a bevy of controversial cases. Most notably, this includes the Bush administration's role in the 5-4 1992 Casey v Planned Parenthood decision that almost overturned Roe. Other key cases involved abortion clinic protests by the militant anti-choice group Operation Rescue and mining on public lands.

To prevent the release of the Bush 41-era documents, the Bush White House, like Santorum, has claimed "attorney-client privilege." Normally, attorney-client privilege shields lawyers from disclosing conversations with their clients, as well as their protecting their notes and memos from prosecutors.

Sadly for them, however, it is Kenneth Starr himself who may have fatally undermined this argument. In 1996, then independent counsel Starr sued to get access to notes taken by White House lawyers Jane Sherburne and Miriam Nemetz, who had met with First Lady Hillary Rodham Clinton after she appeared before Starr's grand jury. The 8th Circuit Court of Appeals ruled for Starr and his argument that White House lawyers work for the American people, saying "We decline to endorse the position of the White House where it is based on nothing more than political concerns." The Supreme Court refused to hear the appeal by the Clinton White House.

The Bush White House may be on weak ground with its attorney-client privilege argument for shielding Roberts' 89-93 vintage documents, but is pursuing a parallel defense. As William Douglas wrote for Knight Ridder:

White House officials say the difference between the documents is that Roberts' work as a Reagan-era White House lawyer had already been released under the Presidential Records Act, which calls for records to be made public 12 years after an administration ended.

The objective, according to University of Connecticut professor David Yalov, is delay. "It might take years for courts to sift these things through, which is to the advantage of the people holding the documents."

There may, alas, be another motivation for George Bush in preventing access to documents showing Roberts' role in hot button cases that could impact his confirmation. That motivation may simply be filial piety - the son trying to conceal the sins of the father. Of special interest is Roberts role, if any, in President George H.W. Bush's 1992 pardon Caspar Weinberger and other Reagan-era officials in the Iran-Control scandal.

Bush the Younger's concern for the reputation of Bush the Elder has been a recurring theme from the beginning of his presidency. In October 2001, George W. Bush cited unusual and unprecedented "national security" claims to exempt key documents pertaining to his father's vice presidency from release under the Presidential Records Act. His new rules blocked the release of 68,000 pages of Reagan-era documents, including documents the Reagan Library itself wanted to release.

Section 11, covering Vice Presidential Records is especially interesting, given Iran-Contra independent counsel Lawrence Walsh's interest in key George HW Bush documents during the second Reagan term. As Scott Nelson of Public Citizen, which brought suit to block implementation of the Executive Order on Presidential Records, put it, "this concept lacks any foundation in American constitutional law. It’s interesting that the first beneficiary of this new doctrine would be the father of the man who announced it."

In any event, the battle over the John Roberts paper trail is just beginning. Regardless of its outcome, there's no doubt that President Bush does not want light of day shone on the documents of his first Supreme Court choice - or his father.

—Perrspective 12:13 PM | Permalink | Comments (0) |