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

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.

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:

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
Sean, thanks for the link -- that's a whole kettle of snakes right there.
3.25.2009 10:32am :
I'm sorry, but I can't talk about any of this.
3.25.2009 11:48am

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