Monday, June 02, 2008

Scott McClellan

As the blogosphere and news universe (newsiverse?) issue a collective "duh" in response to Scott McClellan's announcement that much of the stuff he said as President Bush's press secretary was hokum, it's worth asking what rules or standards should govern when former government officials can air dirty laundry. Although I have never served in the executive branch of any government (unless you count my 6 months as a prosecutor of low-level offenses in Somerville, MA while a third-year law student), I have been tasked with keeping confidences for clients, as a law clerk, and in carrying out various administrative duties as an academic, usually involving personnel decisions.

I'll put aside issues of confidentiality in academia, where I have witnessed so many blatant breaches as to make me question the existence of a confidentiality norm in anything but name only. As a law clerk, I always understood the norm to be that it was permissible to tell anecdotes about your former boss, so long as they make him or her look good or reveal only charming personal foibles, like an inability to operate a coffee maker or an obsession with the Chicago Cubs. The only times I have broken this norm have been to deny the suggestion that occasionally surfaced in the right-wing press that as a law clerk I brainwashed Justice Kennedy into not voting to overturn Roe v. Wade. If I knew how to brainwash anyone, surely I would have better luck getting my daughters to go to sleep at their bedtime. As for clients, the rule is easy and observed punctiliously by just about every serious lawyer: You don't reveal confidences, except where, as permitted or required by the ethical rules, to prevent a future (or ongoing) serious offense.

One can make a case that government officials should be bound by the same rule as lawyers representing clients: You get to blow the whistle on future or ongoing serious crime or fraud, but you can't otherwise kiss and tell. After all, good policy making requires frank discussions, and the fear that someone in the room will spill the beans can chill frank discussion. (Chilled franks and beans. Blech!) Perhaps a looser standard ought to apply years later for the benefit of the historical record, but we might even want to hesitate there. By analogy, the attorney-client privilege survives the client's death. Frank policy discussion could be chilled by officials' fears about reputational harms that might be suffered years later.

If some variant of the foregoing is the right rule, then arguably McClellan violated it at both ends. He can't take advantage of any crime/fraud exception now because his revelations come way too late to be useful to the public, and as press secretary McClellan did not merely learn about wrongdoing; he was a key perpetrator of it. The greatest sin of the Bush Administration---misleading the nation into war---was a sin committed through propaganda, and McClellan was, for a time, chief propagandist. True, McClellan did not become WH Press Sec'y until after the war was underway, but that still left him with plenty of opportunities to dissemble about the war and other matters.

Whatever ambivalence people might towards other insiders-turned-critics, if they were policy makers, at least they can defend themselves by saying they were internal critics whose positions did not allow them to go public at the time. This would have to be the argument for George Tenet, for example, or for Colin Powell if he now wrote a book. The defense is/would be highly dubious in such cases, but it's not even arguably in play for McClellan.

Posted by Mike Dorf