Yes, The Attorney General Can Have Privileged Conversations With The President

Dan McLaughlin:

Ben Rhodes is one of several Obama Administration alums active on Twitter pushing Team Obama’s post-presidential narratives; others include David Axelrod, Dan Pfieffer, Jon Favreau, Jon Lovett, and Tommy Vietor. You’ll remember Rhodes as the maestro of the Obama narrative-building campaign to sell the Iran deal, a onetime aspiring novelist from a Master’s of Fine Arts program who bragged to the New York Times in 2016 about how easy the modern press was to manipulate:

“All these newspapers used to have foreign bureaus,” he said. “Now they don’t. They call us to explain to them what’s happening in Moscow and Cairo. Most of the outlets are reporting on world events from Washington. The average reporter we talk to is 27 years old, and their only reporting experience consists of being around political campaigns. That’s a sea change. They literally know nothing.”

Yesterday, Rhodes thought he had what you might call a “sick burn” on Mike Huckabee on Twitter:

Dems act like they never heard of atty/client privilege; AG is top atty in Exec branch; serves @POTUS and not stooge of Congress.

— Gov. Mike Huckabee (@GovMikeHuckabee) June 13, 2017

This is completely wrong. Sessions is the AG and US chief law enforcement official, not the President’s WH counsel or personal attorney. https://t.co/6OqfL4IbRL

— Ben Rhodes (@brhodes) June 13, 2017

 

Naturally, Rhodes’ interpretation spread quickly around Twitter. But Rhodes is wrong about the law and the nature of the Attorney General’s job, and his mistake is all too common among people in DC who have forgotten how our Constitutional structure works. The Attorney General’s client isn’t the Department of Justice, and he serves the people only indirectly by serving the president.

As a reminder, Article II of the Constitution charges the president — and no one else — with the duty to “take Care that the Laws be faithfully executed.” All Article II says about the rest of the executive branch is that “The President…may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices…he shall nominate, and by and with the advice and consent of the Senate, shall appoint…officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”  It says nothing about an attorney general or a Department of Justice, both of which were created by Congress to help presidents carry out this core constitutional duty under the control of the president, including the role of providing the president with their “opinion, in writing”.

For the first 70 years under the Constitution, that was the chief role of the Attorney General: to advise the president about legal matters, sometimes confidentially, sometimes by formal written opinions that were intended to be part of the public record. As the Justice Department grew in the years after the Civil War, the AG became more consumed with running the Justice Department, and eventually the role of confidential legal advisor to the president was mainly taken up in practice by the White House Counsel, and the role of providing written legal opinions to the executive branch was housed in the Office of Legal Counsel within DOJ. But nothing in the law prevented the AG from being called to advise the president in confidence, and presidents have continued to do so from time to time.

The Reagan Administration had many bitter battles with the Democratic-run House over what information the Administration needed to provide to Congress, and in 1982, Ted Olson (later George W. Bush’s Solicitor General) drafted an OLC opinion on the various privileges available when the Attorney General is called to testify or provide information to Congress. OLC opinions don’t have the binding precedential force of judicial opinions, but as the considered legal judgment of a co-equal branch of the federal government, they are typically accorded a lot of weight. Building on the Supreme Court’s landmark 1981 Upjohn opinion, which dealt with how the attorney-client privilege applies when the client is a corporation, the 1982 OLC opinion concluded that the AG is entirely justified in treating legal advice to the president in his official capacity as privileged and confidential under the attorney-client privilege:

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