Topic: Communication Between Client and Lawyer
Senator: Cornyn
Date: SEPTEMBER 15, 2005
Contents
CORNYN: Mr. Chairman?
SPECTER: Senator Cornyn?
CORNYN: If I might have three minutes, I just want to ask the witness to explain the rationale, as he understands it, for the privilege...
SPECTER: Senator Cornyn, you're recognized for three minutes.
CORNYN: Thank you.
Mr. Chairman, it strikes me as odd, having been on the committee last year when we had an unfortunate theft of internal documents that were written by staffers of individual senators, which were then published to the outside world -- there was bipartisan outrage over that. And we, as I recall, referred that matter for investigation and possible prosecution.
But surely if the legislative branch is entitled to confidential communications between our lawyers and us so we can do our jobs and get candid advice, the executive or the president is entitled to the same sort of confidential and candid communications.
And, Judge, this is the question. I don't want anybody to be under the misapprehension that, number one, it's within your power to produce additional documents. It's hard to imagine there are, in addition to the 100,000 that have already been produced.
But I want to give you a chance to articulate the reasons why the law recognizes this importance of a confidential, candid communication between a client and the lawyer that cannot be readily overrun or trumped.
And would you give that a shot, please?
ROBERTS: Well, I mean, certainly the basic attorney-client privilege goes back centuries. And there have been eloquent expressions of its value in the Supreme Court; I think of the Upjohn opinion from 1982 in the Supreme Court and other classic expressions.
And the idea is if we want people to benefit from the advice that lawyers can give, we have to ensure that they feel perfectly free to communicate and exchange their views with their lawyer without fear that that would be reviewed and used to their prejudice.
Carried forward to the point that we're talking about now, you have to have a candid exchange among lawyers in presenting cases to the court in order to effectively represent your client, whether your client is the government of the United States or a private company.
ROBERTS: And that type of a debate, which often involves pointing out inconsistencies in the decision, even flaws in your own legal position. So this is the argument. But this part of the argument is really quite weak and we have to be worried about that.
Those sorts of things, you do need to thrash out and discuss and elaborate on. And yet, if that was then revealed to your adversary or to the court, it would obviously prejudice the presentation.
And if those things were going to be regularly revealed, people wouldn't make those types of analysis and judgments. They wouldn't say, "This is a weak argument. What are we going to do about that? Should we really make that argument?"
They would not commit those to writing and the adequacy of the legal counsel and advice would suffer. And the role of the advocate before the court in vindicating the rule of law on which the courts rely would also suffer.
CORNYN: Mr. Chairman, it may already be part of the record but if it's not, I would ask unanimous consent at this point in the record that we would make the letter of former solicitor generals appointed both by Democrat presidents and Republican presidents who agreed that the solicitor general memos should remain protected by the privilege part of the record.
SPECTER: Without objection, so ordered.
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