We should break up the Office of Personnel Management, but for right reasons
Can the president confide in his attorney general?
Now that William H. Barr is confirmed as attorney general, how free will President Trump feel to confide in him - meaning, to expect attorney-client-like confidentiality - about challenging aspects of the investigations by special counsel Robert Mueller and the U.S. Attorney's Office for the Southern District of New York?
When John F. Kennedy was president and his brother was attorney general, few doubted that Bobby Kennedy would take his brother's secrets to the grave. JFK didn't have to rely on "executive privilege" to know that even a congressional committee couldn't extract their private discussions. The Kennedy situation, however, was unique. The brothers' special bond and relationship would make their conversations secure no matter what - even, we suspect, had there been a criminal investigation of President Kennedy. But the basis for such exquisite, filial privacy (wherein, presumably, RFK would have willingly taken a congressional contempt finding) won't reoccur - the anti-nepotism statute bars it.
Acting Attorney General Matthew Whitaker, whose 15 minutes as attorney general is over, testified before the House Judiciary Committee on Feb. 8. Despite many almost comical moments, the focus here is on the one area in which Whitaker may have a point: he basically refused to answer questions about any conversation he had with President Trump. He said repeatedly: "I do not intend today to talk about my private conversations with the president or White House officials." So, one wonders whether the president - any president - should be confident that he can speak freely with his chief law enforcement officer when it comes to advice he may seek about his presidency and administration - that is, unless the president's conversations with the attorney general relate to committing a crime, e.g., obstruction of justice.
Yes, make no mistake, the attorney general is not the president's attorney; he's the nation's attorney. And the president shouldn't expect to be able to confide in him as if he's the president's personal lawyer. To be clear, no traditional attorney-client safe harbor applies to their communications. Still, suppose for example, a president asks his attorney general for advice on the "political" consequences of invading another nation, or whether the president likely will be asked to testify before Congress about pardoning a political crony. Can a president confidentially ask his attorney general if Congress can legally demand his tax returns, or whether he can declare a national emergency when the president has no grounds to believe it exists?
Now, the public might be gravely troubled by the spectacle of an attorney general claiming that he won't disclose any such conversations to Congress. After all, he's "the people's lawyer" and the people, Congress acting as their surrogate, have a right to his testimony, don't they? Troubling, though, as it may be, does a president have a valid claim of executive privilege over most of those conversations? I'm not talking about Richard Nixon's claim of executive privilege. There, the Supreme Court, while upholding the privilege, held that the privilege didn't outweigh the public's interest in the truth when criminal conduct was satisfactorily asserted by the Watergate special prosecutor.
What about today? Is President Trump within his right to have his attorney general assert the privilege when, at least yet, Congress seemingly hasn't offered a compelling case that any conversations with Whitaker implicated criminal conduct by the president?
It is frustrating, indeed, for Congress and the public to observe the nation's chief law enforcement officer reflexively responding to virtually every question by saying, in essence: "That's between me and the president, and Mr. Chairman, I see that your five minutes is up." Still, although the Supreme Court did direct Nixon to disclose his (taped) conversations with advisers, it also underscored the importance of confidentiality among them.
As stated by the court, there's "the valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process."
The expectation of a president to the confidentiality of his conversations and correspondence, like the confidentiality of judicial deliberations, has all the values to which we accord deference for the privacy of all citizens and, added to those values is the necessity for protection of the public interest in candid, objective, even blunt or harsh opinions in presidential decision-making. A president and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions, and to do so in a way many would be unwilling to express except privately.
A day may come when either the House Judiciary Committee or Mueller, or both, will persuade the courts that they possess prima facie evidence that the president committed criminal conduct and discussed it with the attorney general. Awaiting that moment, however, it remains disturbing to listen to an attorney general throw down the gauntlet that he simply will not disclose conversations with the president.
Still, one must consider the quoted language of the Supreme Court. Putting aside Whitaker's performance (presumably designed to gain the president's approbation), the administration seems to have case law on its side - at least for now. Otherwise, why hasn't the Judiciary Committee made a proffer justifying why, under the Nixon case, it is entitled to his answers?
Finally, as long as we're talking about Whitaker's performance before the Judiciary Committee, what about the committee's own performance? If its members spent less time showboating and more time asking direct, probative questions - for example, "Mr. Whitaker, has the president, directly or indirectly, told you he wants Mueller gone?" or, "Has the president, directly or indirectly, asked you to limit Mueller's budget?" or, "Has any representative of (or intermediary with) the president asked or told you, directly or indirectly, to keep Mueller's report confidential?" - the committee might get closer to the end zone. That is, at least to the zone where a court might actually direct Whitaker, or his successor, to answer questions.
The immediate question, for now, is this: How free will the president feel to speak openly with his new attorney general about the many investigations concerning him? The answer largely depends on whether President Trump continues to see the attorney general as "his" attorney general. And make no mistake, whatever the president thinks, the courts, if called upon, may see it quite differently.
Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is an adjunct professor at Fordham Law School. He regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of "Broken Scales: Reflections on Injustice."