How to read the Constitution–and why. By Kim Wehle. Pp. 15-17

Timely, please read. Abraham Boulder.

“The attorney-client privilege is a judge-made doctrine or rule that keeps communications between a lawyer and client confidential if they are made for the purpose of obtaining legal advice. The policy rationale for it is that if people thought that conversations with their lawyers could be obtained by an opponent and used against them, they wouldn’t talk to lawyers in the first place. The theory behind the attorney-client privilege is something like: society benefits if people talk to attorneys when their legal rights and obligations are at stake. The First Lady is not a government employee; that is, she is not paid for her service with taxpayer dollars. Prosecutors within the independent counsel’s office argued that the attorney-client privilege did not apply to Mrs. Clinton because she was not a government “client.” An appeals court later found that the privilege did not protect Mrs. Clinton’s conversations with White House lawyers, and the US Supreme Court refused to hear the case, so the lower court decision stands.1 I share this anecdote because it was the first time I grasped the importance and longevity of decisions about the powers of the government. What it means today, for example, is that conversations between President Trump’s government-paid lawyers and his daughter and adviser Ivanka can likely be subpoenaed in a civil lawsuit or criminal investigation without contending with the attorney-client privilege. The debate within the ranks of the independent counsel’s office revolved around questions of precedent: “We want this for purposes of this investigation, sure, but if we get what we want, what does it mean for future White Houses—maybe Republican-led ones?” Once the subpoena power was construed to include the ability to obtain this kind of information from a sitting president’s spouse, it went in the next prosecutor’s toolbox, where it remains. A more haunting example of the toolbox phenomenon has to do with the so-called war on terror under President George W. Bush. Famously, then deputy assistant attorney general John Yoo drafted a set of memoranda that defined torture as severe pain associated with “death, organ failure, or serious impairment of body functions,” accompanied by “prolonged mental harm” over a duration of months or years. With such a high bar to a torture ban, the memorandum gave the president a green light to conduct interrogations in ways that most people would find abhorrent and abusive. The torture memos made possible the notorious Abu Ghraib scandal of 2003 involving human rights atrocities by US Army and Central Intelligence Agency personnel in an Iraqi prison. Around the same time as the torture memos, now professor Yoo authored another memo asserting that presidents have plenary power during a time of war to monitor the communications of US citizens on American soil without first obtaining a warrant. In effect, the memo suggested that the Fourth Amendment’s ban on unreasonable searches and seizures—and the Constitution in general—does not apply to the president when the country is at war.2 The correctness of Professor Yoo’s conclusions as a matter of constitutional law was—and remains—hotly debated. The torture memos were immediately withdrawn by Jack Goldsmith, who succeeded Assistant Attorney General Jay S. Bybee as head of the Office of Legal Counsel (and became Yoo’s boss) under the same Republican president.3 However, once ideas of unfettered authority to torture or to spy on US citizens without a warrant were put into action, they became part of the lexicon of presidential power. Although Congress has since placed some limits on torture, that presidential power is now in the toolbox, so to speak, to pull out later if a president with a “Yoo view” of executive power sees fit. As a result, politicians and judges of all political stripes must be very careful about how they exercise power when they have it, because they are setting precedents for those who will hold power in the future.”

Today: 1/14/2020. I pray you care

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