Legal Fiction:
I'm no expert on the history or past practice of disclosing a nominee's government writings, but I do know that the assertion of attorney-client privilege as a basis of withholding them is ridiculous. The attorney-client privilege is a privilege that belongs to the client, not the attorney. Once the client waives it, it no longer exists. In Roberts' case, the 'client' is the United States. And there is simply no justification for refusing to waive it when the issue is whether to approve a man who could be on the Court for thirty years or longer.

In addition to Fred Thompson who actually invoked the privilege, Gonzales added that disclosing these materials would 'chill communications' among government attorneys. Maybe, maybe not - but even if it did, it's irrelevant. All lawyers write with the understanding that their client may waive the privilege one day. It happens all the time in DOJ investigations - the government (through a mixture of carrots and sticks) 'persuades' the investigatee to waive privilege.


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