Baseball Crank
Covering the Front and Back Pages of the Newspaper
October 8, 2003
POLITICS/LAW: Documents

Mark Kleiman charges the White House with "an unspeakably sleazy trick that makes sense only as part of a cover-up" in the fact that documents that have been requested from White House employees by the Justice Department will be reviewed by the White House Counsel's office first and will be turned over to DOJ in two weeks. (Link via Calpundit; the same post is now up at Kleiman's new Movable Type blog).

My reaction: Kleiman and others complaining about the "two weeks" really have no clue about the work of laywers. For the White House Counsel's office to just turn over the file without reviewing everything would be irresponsible and tantamount to legal malpractice. I know we'd all love to see total, non-adversarial cooperation, but once you turn over the whole file to the Justice Department, you've got a heck of a time then arguing that the stuff is privileged when Larry Klayman and his ilk come knocking with FOIA requests (he could argue that you've waived any privileges by handing things over, and he'd have some legal support for that position). Two weeks to do a document production of this nature is not even close to a foot-dragging time frame.

I'm not suggesting the White House should take an aggressive position on privileges (or start inventing new ones, a la Bill Clinton). But any time you pull a big file of stuff, there may be things you shouldn't produce - attorney-client privileged communications, embarrassing and irrelevant personal stuff, and in this context, classified national security information that doesn't need to be spread around anymore than necessary. You do have to be careful if you don't want this one leak to open the door to more sensitive disclosures. Ask any lawyer who's represented a government agency, corporation, church, or other organizational client whether they would turn all this stuff over without anyone reviewing it.

Kleiman further claims that

This would be completely routine in a civil case. . . But in a criminal case it's unheard-of: investigators don't usually let the lawyer for one of the defendants take a look at all the documents submitted by the other potential defendants and key witnesses, even if that defendant happens to be the boss of all the others.

This is just not true, and Kleiman, a non-lawyer academic, obviously doesn't know what he's talking about. If a corporation gets a grand jury subpoena, and the company orders its employees to gather evidence, even if the investigation focuses on individuals rather than the company, you bet the company's lawyer will look at the documents. They are, after all, the company's own records. As Kleiman conveniently forgets -- and as Bill Clinton was wont to forget -- the White House counsel represents the institution of the presidency, not the president personally, and the people at issue here are employed by the executive branch. (I assume that the evidence being gathered here is people's work-related records, pursuant to requests made to the White House).

I haven't really gone into the whole Plame thing very far yet, in part because of the baseball playoffs and in part because there's only so much new I would have to add. But this particular gripe is just way overblown and a sign that guys like Kleiman are losing their grip on reality.

UPDATE: Josh Marshall cuts and pastes Kleiman's argument makes the same mistake.

ANOTHER UPDATE: Conrad from The Gweilo Diaries agrees with me. And Kleiman backtracks and tries to pretend that he didn't call this . . . well, "an unspeakably sleazy trick that makes sense only as part of a cover-up."

Posted by Baseball Crank at 7:04 AM | Law 2002-04 • | Politics 2002-03 | Comments (0) | TrackBack (0)
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