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Ethics

: Legal Ethics Forum

Prof. Ackerman and Judge Bybee

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In an article on Slate Bruce Ackerman calls for the impeachment of Jay Bybee on the ground that Judge Bybee is a suspected war criminal and performed incompetently with regard to certain memoranda as head of the OLC.  



The memos have been debated enough, it seems to me.  But I was interested in Prof. Ackerman's view on a question of privilege.  At his confirmation hearing Judge Bybee apparently declined to answer questions regarding the memoranda on the ground that his advice to executive branch officials was privileged.  


Prof. Ackerman disagrees, saying "Bybee wasn't a presidential confidant. He was the head of a division of the Justice Department that gives authoritative legal guidance to the entire bureaucracy. It goes too far to suggest that the opinions he issued in this role are privileged."  


Simply as a matter of doctrine, this seems to me too strong.  Unless the President or the AG (depending on your view of the branch or the department as the client) authorized action inconsistent with confidentiality then the privilege claim seems correct.  And distribution to persons to whom the advice was relevant does not seem to me to be such action.


DM

Full post as published by Legal Ethics Forum on January 14, 2009 (boomark / email).

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