September 04, 2018

A Bit on Privilege

Privilege Claims Are Nothing New
During the consideration of Chief Justice John Roberts, the Justice Department withheld roughly 10 percent of his Solicitor General records on privilege grounds. DOJ said at the time:
“… we cannot provide to the Committee documents disclosing the confidential legal advice and internal deliberations of the attorneys advising the Solicitor General. It is simply contrary to the public interest for these documents to be released. … These internal discussions among lawyers have always been considered privileged, covered by both the deliberative process privilege and the attorney-client privilege, and the Department has traditionally declined to make public the documents reflecting those deliberations. To release these documents would cause grave harm to the ability of the Solicitor General to fulfill his designated function…”
During the consideration of Justice Kagan, the committee, on a bipartisan basis, declined to seek her Solicitor General records for the same reason that they were withheld for Justice Roberts.
The Committee Historically Refrains from Requesting Privileged Material
Historically, the Committee has respected claims of constitutional privilege and declined to receive such material. Senators Grassley and Feinstein explicitly excluded privileged material from their records request during the nomination of Justice Gorsuch:
“As the Committee has done in the past while considering Supreme Court nominations, most recently in considering Justice Kagan's nomination, we intend then to respect the invocation of privilege by a co-equal branch of our government.”
In Grassley’s request for Judge Kavanaugh’s files, he again pledged to respect claims of privilege. If the same standard was acceptable to Democrats for Justice Gorsuch, why is it different now?
Privilege Traditionally Covers Many of Judge Kavanaugh’s WHCO Duties
The Constitution gives the President the authority to withhold from Congress documents containing sensitive advice, attorney-client discussions, and deliberations about federal judicial nominations.  Judge Kavanaugh worked extensively on matters covered by these privileges during his years in the White House Counsel's Office. Therefore it is not surprising that some of those records would be withheld as privileged by the Constitution.