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uesday WH Briefing: John Roberts and Iran-Contra

By E&P Staff

Published: July 26, 2005 5:00 PM ET

NEW YORKVirtually giving up, at last, on getting Press Secretary Scott McClellan to comment on the Plame/CIA leak affair, reporters at today's White House briefing concentrated on another hot issue, the Democrats' attempt to get the White House to release more of a paper trail on Supreme Court nominee John Roberts.

The White House says it will hand over more than enough documents, while the Democrats want more.

One emerging hot button issue revolves around the holding back of Roberts documents from his days in the Bush I administration as a deputy in the Solicitor General's office, on grounds of client-attorney privilege. Of particular interest here, for some Democrats, is what advice Roberts might have offered leading up to President George H.W. Bush's pardon of Caspar Weinberger and others in the Iran-Control scandal.

But some feel that that client-attorney privilege argument may not hold, legally, so the White House may also be prepared to deny documents on “national security” grounds. This prompted perhaps the most pointed question of today's briefing (from a “Dana,” presumably Dana Milbank of The Washington Post), who asked near the end of the session, “Do you consider Iran-Contra a national security issue?”

“I haven't even thought about that, Dana,” McClellan replied, “to tell you the truth.”

Here are excerpts from the official transcript related to the Roberts documents:

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Q Do you plan to make any claims for executive privilege for any of those documents? We know you're -- you have some attorney client privilege concerns.

MR. McCLELLAN: Well, this was something we consulted with Chairman Specter about and Chairman Specter expressed his appreciation for what we are doing. We wanted to make sure that all appropriate information was getting to the Senate, so that they could move about in a timely and fair fashion on Judge Roberts' nomination. I think you need to look back at what you're referring to. There are seven former solicitor generals who have publicly expressed concerns when it comes to information related to attorney-client privilege. They rely on open, candid and thorough assessments or advice from their attorneys during the decision-making process, and you cannot have that if attorneys in the Office of the Solicitor General fear that that information might be disclosed.

Q What's the case law that establishes attorney-client privilege for the work of the Solicitor General's Office?

MR. McCLELLAN: There is ample case law that is available that --

Q Specifically.

MR. McCLELLAN: -- talks about the importance of government attorneys having attorney-client privilege. And I'll be glad to provide you that information. There is ample case law available.

Q Seth Waxman, himself, argued that the attorney-client privilege applies to the White House Counsel's Office, under the Clinton administration--and the courts found that that was not the case.

MR. McCLELLAN: The Solicitor General's Office comes under the Federal Records Act. The White House Counsel's Office comes under the Presidential Records Act. And under the Presidential Records Act, there is a presumption of disclosure. All of us who come here and work at the White House know that what we are doing is going to be disclosed publicly.

Q So that doesn't compromise the integrity of the discussions within the White House Counsel's Office, but it does the Solicitor General's Office?

MR. McCLELLAN: No, I'm saying there are two different acts that govern these issues, and that's why I was pointing back to what the solicitor general said when it came to the decision-making process in their office.

Q Does the solicitor general work for the people or the President?

MR. McCLELLAN: The solicitor general represents the U.S. government in issues. And so they are the attorney for the U.S. government.

Q How many documents fall under this category, and what are they?

MR. McCLELLAN: Fall under what category?

Q The attorney-client privilege. How many are you holding back, and what do they consist of, exactly?

MR. McCLELLAN: First of all, we're providing all appropriate information to the Senate. And I wanted to make that clear. That's why we went ahead and made this decision so that we could expedite that process at the Reagan Library to make that information available --

Q Right, but how many are you holding back?

MR. McCLELLAN: Wait, hang on -- available before they return so that they can get about moving forward on the confirmation process in a timely manner. We think that's important. And much of this information may not have been made available if it had gone through the normal review process.

Q How many are you holding back and what does it consist of?

MR. McCLELLAN: But in terms of the Solicitor General's Office, the White House hasn't seen or reviewed any of those documents. It wouldn't be appropriate for us to do so, for the reasons I just stated.

***
Q Wouldn't his later work be more relevant than thousands of pages of what he did 25 years ago?

MR. McCLELLAN: His work on the court is absolutely something for people to look at, the last two years that he has served on the D.C. Circuit Court of Appeals. And that's why I pointed back to the confirmation hearing process that he had been through previously….

Q On the solicitor general documents, which you are not going to release, that is non-negotiable, the end of story, as far as the White House is concerned?

MR. McCLELLAN: I think we've made our views known.

***
Q Back to Roberts and the documents. Does the White House maintain that what it's doing now related to the DOJ and the Counsel documents is, in effect, expediting the process? It's not that these documents wouldn't be available to members of Congress in the absence of the White House's assistance?

MR. McCLELLAN: We are expediting the process when you're talking about the Reagan Library documents, absolutely.

Q Democrats are arguing that, in effect, however, those documents were in the process of being made public anyway, and that the documents at the Archives were available, thank you very much, and their argument is that they haven't gotten anything that they couldn't have gotten under themselves, and what they're seeking in the solicitor general's documents, they're being denied.

MR. McCLELLAN: Well, first of all, on the Reagan Library documents, there is a process that they are going through to make those documents available publicly, but it is a process that tends to make months. At a minimum, it takes weeks and weeks and weeks. I think everybody recognizes the importance of moving forward in a timely manner on this confirmation hearing.

And this is documents that we're talking about from 20 years ago . I mean, these documents essentially show a young White House staffer providing his legal analysis to support the President's agenda at the time. That's what these documents are. But we wanted to make sure that they had all the appropriate information they needed. And that's what this is about.
***

Q Did you waive any attorney-client privilege in the documents that are being released?

MR. McCLELLAN: I'm sorry, the documents that are being released?

Q Correct.

MR. McCLELLAN: Well, the documents in the Archives are all available publicly and the documents -- like I said, the documents at the Reagan Library, I mean, they're covered under the Presidential Records Act, and I think only documents that you're talking about that might not be disclosed would be related to issues of national security concerns or privacy concerns.

Q And you can't waive any attorney-client privilege under the solicitor general's documents -- is that right?

MR. McCLELLAN: Well, again, I expressed the views of the former solicitor generals and why they believe it's important to protect the attorney-client privilege, and members of the Senate have expressed that, as well.

Q But you would have the authority to waive it if you chose to do so?

MR. McCLELLAN: Again, what we're doing is moving forward and making available all appropriate information for the Senate to do their job and do it in an expedited fashion.

Q Can I just ask a quick follow-up on that?

MR. McCLELLAN: Quick.

Q Do you consider Iran-Contra a national security issue?

MR. McCLELLAN: I haven't even thought about that, Dana, to tell you the truth.

E&P Staff (letters@editorandpublisher.com)