pageok
pageok
pageok
[Richard Painter, guest-blogging, March 24, 2009 at 6:13pm] Trackbacks
Confidentiality:

I should add a word about what I can and cannot talk about. I cannot discuss specific communications to me from the President or his staff or specific information learned in the course of my legal representation that was intended to be confidential. I do, however, discuss in my book the types of issues we confronted, all of which are public knowledge and many of which will also be confronted by President Obama and his staff. The President owns the attorney-client privilege, and my ethical duty to keep confidences also runs to him. The President can waive the privilege or the duty, but has not done so. How such matters are handled by Presidents when White House communications are those made under former Presidents is an issue that I will leave to them. Some argue from a policy perspective that none of this information should be privileged or even kept confidential, but such has not been the generally accepted practice. I find plenty to talk about in my book without having to explore the outer limits of the privilege or the duty to keep confidences.

jackson:
I believe that the client of the Counsel's office is the Executive Office of the President, and not the individual himself. Any waiver of confidentiality would be made by the incumbent President. From an institutional standpoint, the incumbent should respect the wishes of his predecessor, just as he hopes (or should look ahead to hope) that his successor will offer similar respect for confidentiality.
3.24.2009 6:49pm
Chris 24601 (mail) (www):
Was the confidence owed to W de re (i.e., to the man, in which case only W may waive it) or de dicto (i.e., to the office, in which case Obama may)?
3.24.2009 11:42pm
Sean M.:
To whom the privilege belongs (the current or former president) is a difficult and undecided question under case law. Laurent Sacharoff at Temple has a fine article on the issue coming out in the Texas Law Review this year on the topic. The SSRN link is:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1304302

For what its worth, Sacharoff takes the position that the privilege may be waived by the current president, even over the wishes of the former president.
3.25.2009 12:23am
Oren:
Sean, thanks for the link -- that's a whole kettle of snakes right there.
3.25.2009 10:32am
http://volokh.com/?exclude=davidb :
I'm sorry, but I can't talk about any of this.
3.25.2009 11:48am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.