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What Would People Think?

Tuesday, March 27, 2007

How Being A Government Employee Changed My Perspective

In practicing law for the government, I've learned of something called the deliberative process privilege. Think of it as something akin to lawyer-client confidentiality or executive privilege; it's a legal rule that allows the government in most circumstances to keep certain documents from the other side of the lawsuit (when they would normally be entitled to it) if the documents were part of the deliberation that eventually lead to the government making a decision. This also prevents some documents from being released under the Freedom of Information Act. The idea is to encourage free and vigorous debate among government officials without concern that what they say will be used against them....or plastered across the front page of the Washington Post.

So, when the White House released a bunch of documents related to the firing of eight U.S. Attorneys, my first thought wasn't "these people should testify under oath." It wasn't "what do these documents say about the accusation that partisan politics led to the firing of these attorneys?" No, as much as those issues concern me, my first thought was "those documents are protected by the deliberative process privilege! YOU PUNKS JUST WEAKENED MY DELIBERATIVE PROCESS PRIVILEGE BY RELEASING THOSE DOCUMENTS!"

This has nothing to do with whether the firings were wrong or whether White House officials should testify under oath. It doesn't change my opinion about whether certain government officials should be fired by the American people or by Congress (if you get my drift)...it's just that.....dammit, I want my privilege.

Funny how being a partisan swiftly changes one's perspective.

5 Comments:

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    By Blogger Homosexual Christmas tin soldier, at 3/27/2007 7:48 PM  

  • Damn, I can't top that. That's gotta be the absolute greatest possible response to this post.

    By Blogger Mike, at 3/28/2007 9:51 AM  

  • You'd feel differently, on the other side of the issue. I don't have a problem with government investigators holding back documents that reflect deliberations consistent with agency discretion. However, I do have a problem with agencies that do not disclose evidence that was a part of deliberations. My experience is that agencies do not disclose the evidence, out of concern that the disclosure of the evidence itself will lead to disclosure of the deliberations regarding the evidence, or of confidential sources. It places defendants in subsequent proceedings at a disadvantage, in that evidence that an agency does not consider material, or did not contribute materially to any enforcement action, is not made available to the defense on the basis of deliberative process privilege. On the other hand, government agencies have unrestricted access to corporate or individual records as a part of their deliberative process.

    By Anonymous Anonymous, at 3/29/2007 9:50 AM  

  • Actually the deliberative process privilege does not protect evidence. Now there is a separate informant's privilege - we don't disclose the name of a corporate whistleblower/complainant unless they are going to testify.

    By Blogger Ben, at 3/31/2007 8:26 PM  

  • I understand the principles. Maybe I don't understand your objection. If the documents regarding Gonzalez were not "evidence"--that is, they truly and unambiguously were subject to deliberative process privilege--their provision would only be a waiver of privilege in that case, and not the stuff of binding precedent or policy upon the office of the solicitor, in Atlanta or elsewhere. If they are "evidence", then you appear to agree that they should be provided. So what is the big deal? Just because they may have taken actions that waived privilege does not require you to do so.

    By Anonymous Anonymous, at 4/02/2007 1:38 PM  

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