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Start Making Sense: Ironic waiver?
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Start Making Sense
Unfair but balanced commentary on tax and budget policy, contemporary U.S. politics and culture, and whatever else happens to come up
Monday, March 26, 2007
Ironic waiver?
One of the interesting threads in the attorney scandal is that White House officials did lots of their communicating via Republican National Committee e-mails rather than White House e-mails. E.g., there is a report that Rove does 95% of his e-mailing via the RNC address. Trivial though this may sound, there is also reason to believe that a lot of this has been done deliberately to evade legal requirements pertaining to recording and retention of official communications. How does this play into the executive privilege claims? The natural analogy is attorney-client privilege, which is easily blown by the parties who want to claim it in various circumstances where they failed to treat a communication as confidential and as within the attorney-client relationship. Plus, there is no privilege where the attorney is providing not legal advice but something else (e.g., investment or tax accounting advice). It's a truism among knowledgeable practitioners that far less is actually covered by the privilege than lawyers tend to think while they are going about their daily business. Obviously, there is next to no legal precedent on the boundaries of executive privilege, compared to the centuries of cases et al regarding the attorney-client privilege. But the privileges are similarly motivated cousins, and analogies from the latter are by no means irrelevant to thinking about the former. And if you think there's a special public purpose to letting the president get confidential advice, there's also a special public purpose to preventing him from evading oversight. The easy and obvious point is that anything Rove sent out in an e-mail from his RNC address is not privileged. Call it a "
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