In July 25 news reports summarizing arguments made by Democrats and Republicans on various Sunday television news shows about whether the White House should release documents from Supreme Court nominee John G. Roberts Jr.'s tenure in the Justice Department, The Washington Post, USA Today, and The Wall Street Journal cited the principal Republican arguments for confidentiality while omitting a key argument by Sen. Patrick Leahy (D-VT) underpinning the call for disclosure.
While USA Today and the Post reported that the Bush administration cited attorney-client privilege in arguing against release of the documents, they simply noted that Leahy called the privilege argument a "red herring," without reporting that he cited numerous examples of recent administrations turning over comparable documents during Senate nomination proceedings. Similarly, the Journal cited the administration's argument against disclosure while not addressing Leahy's assertion of precedent at all. By contrast, The New York Times and the Los Angeles Times reported that Leahy rebutted the attorney-client privilege argument by citing precedent for turning over documents, including those of Chief Justice William Rehnquist and former Supreme Court nominee Robert H. Bork, among others. Leahy argued that these examples provide ample support for Democrats' request for legal documents written by Roberts while he served as principal deputy solicitor general in the Justice Department under President George H.W. Bush.
Appearing on the July 24 broadcast of ABC's This Week with George Stephanopoulos, Leahy emphasized that examples such as Bork and Rehnquist provided "so much precedent" for handing over documents that were "written confidentially within the Department of Justice":
STEPHANOPOULOS (host): OK, so we'll watch for that later. You heard Sen. [John] McCain [R-AZ] also draw the line along with the White House on these documents. Are you gonna join in Sen. [John] Kerry's [D-MA] request, make a formal request for these internal memorandums that Judge Roberts wrote when he worked in the Justice Department, when he worked in the Reagan White House?
LEAHY: I have a number of areas I'm going to question. If they involve documents, I will ask for the documents. Each senator has to make up his or her mind which documents they might want to ask for. But you know, there's precedents. Judge Bork, Chief Justice Rehnquist, [Associate Attorney General] Bradford Reynolds, [Attorney General] Ben Civiletti, [Attorney General] Ed Meese, all these people in various hearings gave up documents that they had written confidentially within the Department of Justice. There is so much precedent for that. It is a total red herring to say, "Oh, we can't show it." and, of course, there is no client, lawyer-client privilege. Those working in the solicitor general's office are not working for the president. They're working for you and me and all the American people.
During the 2002-03 debate over Miguel Estrada's nomination to the U.S. Court of Appeals for the District of Columbia Circuit, several media outlets noted the precedent cited by Leahy in reporting on whether the White House should turn over memos prepared by Estrada while he was in the Solicitor General's Office in the early 1990s. For example, a September 25, 2002, New York Times editorial noted Democratic requests for these memos: "There are precedents for this. When Robert Bork was nominated to the Supreme Court in 1987, the Senate was given access to memos prepared while he was solicitor general." Similarly, as then-Legal Times managing editor Jonathan Groner documented on June 3, 2002, "The Reagan Justice Department let Senate staffers read some of the legal opinions that Rehnquist had crafted when he headed the Justice Department's Office of Legal Counsel in the Nixon administration."
But Leahy's examples of precedent were lost in the coverage of Sunday show remarks by the Post, USA Today and the Journal.
The Post cited arguments by Roberts's adviser, former Sen. Fred D. Thompson (R-TN), and Attorney General Alberto Gonzales in support of the White House position that confidential memos should not be disclosed because of "attorney-client privilege," and then mentioned Leahy's remark that such arguments were a "red herring" without revealing his reasoning:
The two sides sparred yesterday over the Democrats' plan to request documents covering Roberts's tenure in the administrations of Ronald Reagan and George H.W. Bush. Former Republican senator Fred D. Thompson (Tenn.), who is shepherding the nomination through the Senate on behalf of the White House, said the administration would oppose such a request, citing attorney-client privilege.
"We hope we don't get into a situation where documents are asked for that folks know will not be forthcoming and we get all hung up on that," he said on NBC's "Meet the Press."
Attorney General Alberto R. Gonzales said on "Fox News Sunday" that this and other White Houses were reluctant to share such information and promised only to consider any Democratic requests. Leahy, on ABC's "This Week," dismissed that argument as a "red herring" and said Democrats would press the administration on the issue.
Similarly, while reporting on remarks made by Sen. Dick Durbin (D-IL) in favor of disclosure and providing more context for Leahy's remarks than the Post, USA Today nonetheless also failed to address Democrats' citation of precedent, despite noting Thompson's arguments against disclosure:
Senate Democrats appearing on Sunday television talk shows challenged the White House view and indicated that a potential battle over Roberts' writings could be a flashpoint in his confirmation hearings later this summer.
"I think there are important questions raised about things that he said and things that he wrote when he was working for the government," Dick Durbin of Illinois, the No. 2 Democrat in the Senate, said of Roberts on NBC's Meet The Press.
Fred Thompson, a Republican former senator from Tennessee who's helping guide the nomination through the Senate, said attorney-client privilege could justify withholding at least some material written by Roberts. Previous Republican and Democratic administrations followed the same practice, Thompson said.
"The administration's been ... very consistent in that those things will not be forthcoming," Thompson said on Meet The Press.
On Fox News Sunday, Attorney General Alberto Gonzales said the administration would weigh requests for documents case-by-case. He called Roberts' legal work for the president "very sensitive, very deliberative information" that this or any White House would be reluctant to share.
Vermont Sen. Patrick Leahy, the senior Democrat on the Judiciary Committee, which will handle the confirmation hearings, called the White House view "a red herring."
"Those working in the solicitor general's office are not working for the president. They're working for you and me and all the American people," Leahy said on ABC's This Week.
The Journal reported that Sen. Charles E. Schumer (D-NY), appearing on Fox Broadcasting Co.'s Fox News Sunday, gave the Democrats' reasons for requesting Roberts's memos. It also cited arguments by Thompson and Gonzales against disclosing the memos, but it did not mention the Democrats' claim of precedent.
By contrast, both The New York Times and the L.A. Times highlighted Leahy's claim that there is precedent for the White House to turn over confidential Justice Department memos during Roberts's confirmation hearings.
In addition to reporting comments on the subject by Thompson, Gonzales, Durbin and Sen. John McCain (R-AZ), the L.A. Times specifically referenced Leahy's remarks from This Week in its July 25 report:
But the top Democrat on the Senate Judiciary Committee, Patrick J. Leahy of Vermont, disputed that there was a lawyer-client privilege.
"It's a total red herring to say, oh, we can't show this," he said on ABC's "This Week."
He said Chief Justice William H. Rehnquist, former federal appellate judge Robert H. Bork, former Atty. Gen. Edwin Meese III and others had given up documents written while they worked for the Justice Department.
"Those working in the solicitor general's office are not working for the president; they're working for you and me and all the American people," Leahy said. He said there was "so much precedence" for providing such documents.
While also reporting claims by Thompson and McCain, as well as some of Leahy's This Week remarks, The New York Times cited "a later telephone interview" to highlight Leahy's claim of precedent:
Mr. Leahy, in a later telephone interview, said that Judge Robert H. Bork, in his unsuccessful quest for Senate confirmation to a seat on the Supreme Court, provided many documents from his time in the solicitor general's office in the Nixon administration. "We had all we'd asked for, a number of internal memorandums and nonpublic materials on the question of the release of President Nixon's tape recordings," he said.
But, when it comes to Judge Roberts, Mr. Leahy said: "We don't need all his papers. I haven't even thought if there's something I'm going to ask for or not."