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

16 comments:

Caleb said...

Perhaps there's an analogy to the Rule of Chaos from earlier. I've always had the impression that when the ship is visibly sinking, the rats are allowed to salvage what they can. It seems to me that, where the figure is unpopular enough the rule seems to be that divulging information (or more information than usual) is permitted. Judges (or at least those responsible for prosecuting) might also be more lax in such circumstances - perhaps because they are worried about one day facing the same circumstances? I'm too young to be familiar with the end of the Nixon era, but if there were similar books (or just confessions) after Nixon, it might suggest that there was something like a "sinking ship rule".

Adam P. said...

Nonsense... the Dorfian minions are brainwashed!

Paul said...

I have never agreed with a deliberative process privilege. I think it's grounds are shaky at best and especially so in a representative government. I am, after all, not really interested in the final decisions of my elected representatives so much as I am interested in the processes by which they reached those decisions. I strongly feel that openness should be the rule, not the exception in our government.

With that as the guiding principal, I cannot find a cause to create a privilege or confidentiality requirement, generally, for a president's press secretary. To the contrary, I think it does the country good for the President to know that if (s)he tells his to her press secretary to lie (almost always done for political rather than legitimate national security reasons), that that lie will likely come out.

Frankly, I would be willing to go further and hold elected government officials criminally liable for such statements should they prove to be made willingly and knowingly false.

egarber said...

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.

First off, it seems to me that this is still very useful to the public. The more citizens learn what's going on, the more effectively they'll be able to hold current and future leaders accountable.

But looking into it more, what if a guy comes to realize the full gravity only later? I certainly agree with folks who say that one should resign or speak up as events are happening if he feels so compelled. But SM on MTP yesterday basically said (or at least implied) that it was only after he left the "bubble" that he was truly able to see what had taken place. He said he started out writing one kind of book, and through soul searching it became something quite different. I guess I'm advocating that we allow room for redemption in such matters.

And in the bigger sense, I don't think we need a statute of limitations for whistleblowing. Awkwardness and political backlash are a small price to pay in the pursuit of truth. Though I understand the need for frank / confidential discussion, I also think that every time a Scott M goes public, a kind of reverse chilling effect is re-inforced -- i.e., the next administration will be that much more careful before embarking on reckless behavior.

Tam Ho said...

Is he at least donating the proceeds of the book to the troops or not?

Otherwise, for him to profit from a tell-all about the propaganda scandal in which he played a key role is perverse, to say the least.

egarber said...

Hey tam ho, here's part of yesterday's MTP transcript:

MR. RUSSERT: Some have suggested because you were part of the propaganda machine that sold the war, that many people have died and been injured because of the war, you should donate some of the profits from this book to the families of the victims of the Iraq War. Will you do that?

MR. McCLELLAN: I intend to. I do intend to. I've already...

MR. RUSSERT: Significant?

MR. McCLELLAN: ...made that decision. I--a portion. I don't, I don't know what I'll do, Tim, but a portion, I do intend to do that. My wife and I look for ways to always support the troops, including sending care packages regularly to them.

Alex said...

I can't disagree more strongly with your comments regarding former law clerks. While the confidentiality rules might require clerks not to reveal the "deliberative process" behind any given opinion, there is absolutely no reason - whatsoever - that a judge should be shielded from criticism by his or her former clerks if he or she is rude, insolent, arrogant, stupid, writes poorly, abusive to his/her clerks and/or staff, etc. -- in short a terrible employer or unqualified to perform the job. Judges should not be able to get away with such behavior (or incompetence) merely because of their title. And because law clerks are above all public servants, they should, when appropriate, expose judges that are incapable (or unworthy) of their position. We would all be served better by an honest and informed assessment about the true character and abilities of our judges.

Tam Ho said...

Fortunately (or unfortunately), from the perspective of those of us still living in the reality-based world, McClellan's profit motive here doesn't undermine the credibility of his claims because they are already independently bolstered by so much other evidence. But for Republicans, McClellan's profit motive will provide a line of attack.

Thus, Russert's follow up should have been two-fold: "First, why only a portion? Why not all? Don't your admissions here compel the conclusion that this is blood money you'd be taking? And second, won't your opportunistic profiteering give those who would attack your claims a strong argument to undermine your credibility?"

Russert is one of the better (or less bad) ones, but still - so much for the liberal media.

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