Former WH Counsel: "I regularly spoke with outside lawyers, particularly law professors, about difficult legal issues."

"On certain issues, such as national security law, immigration, and constitutional law, I had different 'kitchen cabinets' that I consulted regularly."

At Lawfare, Neil Eggleston defends the Biden Administration's new eviction moratorium. In the essay, Eggleston admits that while White House Counsel for President Obama, he routinely called law professors for advice!

Second, there is a suggestion in Goldsmith's piece that the involvement of Laurence Tribe, Martha Minow, and Walter Dellinger was somehow improper or coerced by Pelosi. I do not agree with that suggestion at all. While working as White House counsel, I regularly spoke with outside lawyers, particularly law professors, about difficult legal issues. I wanted the best possible legal thinking from a variety of sources. On certain issues, such as national security law, immigration, and constitutional law, I had different "kitchen cabinets" that I consulted regularly. Among those law professors I consulted was Dellinger, just as he appears to have been consulted by the White House lawyers here. There were excellent lawyers at the department and in my own office, but I valued outside input as well. I found it helpful, particularly in evaluating creative ideas and especially as important pieces of the landscape changed quickly, as happened here.

Has any WH Counsel ever admitted to calling law professors as part of a "kitchen cabinet"? This statement seems like a significant concession. I do not think executive privilege would attach. Congress could send subpoenas for all records concerning communications with a "kitchen cabinet" of law professors. Or to make things simple, subpoena people like Tribe, Dellinger, and others about communications they've had with the White House. What a damning admission from Eggleston. Elizabeth Prelogar, the nominee for Solicitor General, should be asked if she has a "kitchen cabinet" of law professors.

Update: An earlier version of this post said that the attorney-client privilege would not be attached. I am not certain that is correct, and removed those assertions.

Comments

[Kazinski]

"I do not think attorney-client privilege would not attach to these communications."

You doubled up on your negatives, rookie mistake.

[David Nieporent]

Well, then he was inadvertently correct, because of course a-c privilege would attach.

[James Pollock]

Normally a-c privilege flows from the attorney's professional obligation of confidentiality. In this case, the attorney is consulting with people who do not have this obligation to him.

[Greg J]

Is he paying them? No?

How do you get a-c privilege without a professional, which means paying, relationship?

If he is paying them, is it with his own money or with gov't money? Was the gov't money appropriated legally? If his own money, is that legal? Can a-c privilege extend to protect his employer's interests, when the employer isn't paying?

[Ridgeway]

There is no requirement of payment to establish an a-c relationship. Think of all the pro bono cases out there.

When we were very young law students, it was drilled into our heads that we had to be very careful to avoid unintentionally establishing a-c relationships with people. What a young lawyer may think is just a friendly (and uncompensated) chat can easily be construed as establishing an a-c relationship by the "client" and/or a judge.

[James Pollock]

"When we were very young law students, it was drilled into our heads that we had to be very careful to avoid unintentionally establishing a-c relationships with people."

One foolproof method of achieving this is to not be an attorney. This is the path I chose myself, and also the path many law professors have settled on. Teaching requires shorter hours, and no tracking of hours the way lawyers have to. Now, some jurisdictions may allow law professors to be admitted to practice, But they still have to be practicing law to incur any responsibilities related to practicing law.
Offering advice is one of those things that the Constitution protects, with very few exceptions.

[Greg J]

"Offering advice is one of those things that the Constitution protects, with very few exceptions."

Found this in a law review article:

Executive privilege is the presidential claim to a “right to preserve the confidentiality of information and documents in the face of legislative” and judicial demands. [1] Although such a privilege is not an explicit right the Constitution grants to the executive branch, its justification is rooted in the doctrine of separation of powers. The argument is that if the internal communications, deliberations, and actions of one branch can be forced into public scrutiny by the other two co-equal branches of government, it will impair the supremacy of the executive branch over its Constitutional activities.

Emphasis added. Outside law professors are not "internal" to the Executive Branch.

Did about as much review on the Deliberative Process Privilege as I'm willing to spend. Everything I found assumed that the Privilege only applied for internal deliberations, but nothing stated that explicitly

[James Pollock]

"Outside law professors are not “internal” to the Executive Branch."

No shit, really?

The thing is, talking to government officials about what the law should be is an enumerated right, towards the end of the 1A.

[David Nieporent]

As the quote you provide expressly says, that's about executive privilege, not attorney-client privilege.

[David Nieporent]

How do you get a-c privilege without a professional, which means paying, relationship?

You watch too much television. When the attorney says to the person who has frantically come to him for advice, "Wait, wait, give me a dollar… okay, thanks. Now I'm your lawyer and these conversations are privileged," that's just Hollywood theatrics. Being paid has nothing whatsoever to do with whether a-c privilege attaches.

In fact, one need not even be engaged as a lawyer for a-c privilege to attach. If a person comes to me and says, "I need a lawyer," and I say, "Okay, so tell me what your legal problem is," and then they do, that conversation is protected by a-c privilege¹ even if they never hire me. Maybe I say at the end of the meeting, "Sorry, I can't help you." Maybe I say, "I can help you; I need a $10,000 retainer," and they say, "What? I can't pay that much. I'm not hiring you." Doesn't matter. It's still privileged.

In essence, almost any communication with a lawyer is privileged if it is made for the purpose of seeking or providing legal advice, if a reasonable person would have understood that it was made in confidence for that purpose.

¹Assuming that the other criteria are met, such as no third parties being present, of course.

[DaivdBehar]

The names should be found in discovery. Then include them as defendants for their Guideline Maker Liability.

[David Nieporent]

Narrator: "In fact, the admission was not 'damning' at all."

[loki13]

In two comments!

This would make a great Arrested Development.

[ah....Clem]

Well, yes. Josh seems to be channeling his inner-Bluth in this post.

[James Pollock]

Keep monitoring to see if he starts talking about running a frozen-banana stand. That'll be the tipoff.

[Soronel Haetir]

How is such advise different from any other investigation performed as work product within an office? That is, the lawyer can send his employees off to perform work (combing through the law library for example) and there is no question that privilege applies.

[James Pollock]

"How is such advise different from any other investigation performed as work product within an office? "

Privilege comes from the fact that attorneys are ethically required to keep the confidences of their clients. Since they can't tell the secrets, asking them to tell the secrets is a waste of the court's time.
It flows to the attorney's agents, as well. The ones who are attorneys have the same professional responsibility to the client, and the ones who are not attorneys are very likely contractually bound to non-disclosure of client confidences.
Randome academics that get consulted have neither of these protections, for the same reason, if the NHTSA consulted some engineering professors about why a highway bridge fell down, it wouldn't be privileged, even if it were an attorney who asked them.

[Jimmy the Dane]

If you need an echo chamber of lawyers who haven't seen the inside of a courtroom since maybe, maybe the beginning of their careers (if ever) then calling up all your law prof buddies sounds like a great idea.

[Krayt]

Eggleston continues: "I remember this one time Obama decided he had the authority to tell Congress when it was in session or not. I didn't bother seeking outside counsel that time, because Obama himself is a constitutional law professor!"

[Greg J]

That would be one of the many cases that the Obama Admin lost 9-0, yes?

[James Pollock]

If it had a 9-0 outcome, then that means that Obama won at least one time below, either 1-0 or 3-0.

I mean, if you're keeping score.

[wolfefan]

Law profs would be good to consult on questions of constitutionality, since that's not a trench thing so much. OTOH, law profs like Josh should probably check w/trench lawyers before discussing, say, privilege.

[UVaGrad]

"I do not think attorney-client privilege would [] attach to these communications."

Tell me you've never litigated a privilege issue in your entire life without telling me you've never litigated a privilege issue in your entire life.

In fact, have you spent more than 15 minutes thinking about privilege issues in your entire life?

[UVaGrad]

This is like garden-variety professional responsibility course stuff, Josh, not a thorny issue. It calls into question your competence to practice, to the extent you claim to practice.

[DaivdBehar]

The Supreme Court seems to disagree with the lawyer dumbasses attacking Josh. The decisions are based on the compulsory
process clause, the confrontation clause, and the due process
clause. The government employer is not a corporation, nor a client. The client of these lawyers is the public. It has a right to know everything the government lawyer does.

[James Pollock]

I have bad news for you. The Supreme Court is staffed with lawyers. Top to bottom.

[santamonica811]

Moronic OP.

He didn't "admit" anything...that's just your batshit-crazy, must-be-something-nefarious hammer, looking frantically for a nail. He cheerfully acknowledged it.

I understand that after 4 years of Trump, someone acknowledging something readily is a shock to your nervous system. But if you can pull up your big-boy pants, hold on to your clutching pearls, and make your way to your fainting couch, you'll see that this refreshing honesty is a good thing.

It's all okay, Josh. Show us where the bad president touched you.

[DaivdBehar]

Silly personal insult. You have no real argument. You are stuck in 4th grade rhetoric.

[James Pollock]

Silly personal insult. You have no real argument

Hey, look. It's infinitely recursive.

[phoqueue]

Why wouldn't there be privilege?

[Brett Bellmore]

I'd assume the reasoning is that just asking for an academic opinion isn't the same thing as retaining somebody as counsel in a legal proceeding.

[Voize of Reazon]

Josh's damning admission is that he doesn't understand privilege.

[Sarcastr0]

I don't mind that - he's not a litigator.

But he didn't bother to check himself as he was writing about it.
I suppose this is just a blog and he's under no obligation of accuracy, but he could save himself some consternation by Googling if he has an inkling he may be getting ahead of his skis.

[ah....Clem]

Who has time to research anything when they have to come up with nineteen posts every day?

Cut him some slack. It must be exhausting. (c:

[loki13]

Yes, you're right.

Cutting Josh Blackman slack is exhausting.

[Voize of Reazon]

In law as in many other professions with specializations you aren't expected to know everything but you are expected to know the limits of your expertise. Just like an ophthalmologist who pretends knowledge of epidemiology, straying outside is likely to be viewed as unprofessional and reputation-damaging. Prof. Blackman strikes me as mindful enough of his reputation that he would want to avoid that result.

[David Nieporent]

I suppose this is just a blog and he’s under no obligation of accuracy, but he could save himself some consternation by Googling if he has an inkling he may be getting ahead of his skis.

Now you've done it. We're in for a six-part series on his skiing excursions.

[James Pollock]

In which it will turn out that he doesn't know how to ski, either. (I don't imagine there's much opportunity to learn, in sourth Texas.)

[Commenter_XY]

Two things.

One, I am glad that the WH counsel reached out to solicit opinions. To me, that is just the right thing to do. One caveat - I would expect the out reach out to solicit a full range of views, most especially views that might be diametrically opposed to your own.

Two, I don't have a problem with transparency. Meaning, disclosing the contacts. We should expect this as a matter of routine (disclosure). The failure to disclose is the problem. As to the communications (like emails) themselves, I am less certain about publication (as distinct from disclosure). I mean, at some level, there are potential privacy concerns.

[Longtobefree]

This is the most transparent administration ever.
Both Biden and Harris are so transparent they are invisible.

[Sarcastr0]

Yeah, neither is in the news ever.

[Krayt]

You aren't gonna pin that **** on her!

[Sarcastr0]

If the best you got is a convenient right-wing rumor that doesn't even bolster Longtobefree's thesis, you may consider not posting.

[Greg J]

Where IS VP Harris right now?

First female VP, picked to be VP solely because she was female, women in Afghanistan are about to lose all their rights, and she's nowhere to be found

[James Pollock]

greg, noun
A person stunningly lacking in intellectual heft.

These idiots are graded in severity, with each grade up being ten times more stupid that the level above, such that a greg c is ten times stupider than a greg b, and only one-tenth as stupid as a greg d. A greg a might be mistaken for a person of almost normal intelligence, on a good day and under favorable conditions, while a greg e is roughly equivalent to a yappy lapdog, incessantly barking at everything. Get much further up the scale than a greg g and the most relevant comparisons are to mineral samples.

Used in a sentence:
That jackass is dumber than a box of gregs.

[Greg J]

IOW, I'm right, you know it, but still have to write something whenever you see my posts, because you're really just that mentally and emotionally crippled

[James Pollock]

You ARE a J greg, aren't you?

[apedad]

Un-freaking-believable.

Prof. Blackman is feeding into the anti-expert crowd (DON'T LISTEN TO SCIENTISTS!!!! CLIMATE CHANGE IS A HOAX!!!!).

But OK. . . I'm here to help.

Josh, contrary to what your auto mechanic may tell you (he's just interested in your money), I read on the internets that if you dump a pound of salt into your gas tank, you can increase your gas mileage by 500%!

[James Pollock]

GAS MILEAGE IS A HOAX!

[Greg J]

"anti-expert crowd"

Ah, as opposed to you, who thinks that the "experts" in the Biden military and State Dept did a bang up job in Afghanistan?

snort

[Stephen Lathrop]

Josh, with so many outside professionals reaching out to assist you, I suppose you don't need an amateur like me giving you advice, but take it anyway—it's a bad, bad look for a professional to be gratuitously wrong in his own field, in public.

[DaivdBehar]

Stephen, you know shit about the law. Stop insulting Josh.

[James Pollock]

Someone's mad about having his no-shit-knowing about law turf tread upon.

[Longtobefree]

Seems like basic economics; keep shopping until you find what you want.

[Sarcastr0]

Why would a counsel need to do that? They can already write whatever legal opinion they want.

[James Pollock]

"They can already write whatever legal opinion they want."
The ones with no support in fact or precedent are only allowed if you're part of Team Kraken.

[Sarcastr0]

Fair enough, but asking outside lawyers won't help with either of those.
There is no value in shopping for those.

[OtisAH]

Another swing and miss, buddy. I get. Why don’t you sit the rest of august out and come back fresh after Labor Day?

[Krayt]

A number of respondents laugh at the suggested lack of attorney client or other confidential privilege.

May I remind those who slept through the past four years that, in spite of the Constitution, cracking that privilege open is no real barrier if your political opponent is really, really odious to you.

See, as with other similar rights, they are at their most important when stopping those in power from using government against their political opponents, and so our Constitution failed its primary job at its most important point.

[Sarcastr0]

Whattaboutism, except for no real examples.
And in defense of Blackman.

[Krayt]

Nope. Wrong here, wrong there.

I am not the ones facetiously shifting situational ethics valuations depending on the predefined goal someone else thought up for them to believe then defend like a trained seal.

[Sarcastr0]

You're basically asking 'well, why have any laws at all? Everyone breaks them!'

It's not very good.

[James Pollock]

"I am not the ones facetiously shifting situational ethics valuations depending on the predefined goal someone else thought up for them to believe then defend like a trained seal."

Well, whoever did do that signed your name to it, so how were we supposed to know that it wadn't you what done did that?

[ReaderY]

On what planet would yhis “admission” be considered “damning”?

Has it become a crime for administration figures to consul a law professor other than Josh Blackman?

It is, of course, a tactic of anti-democratic propaganda to make ordinary behavior seem somehow sinister whenever ones political enemies are involved.

[James Pollock]

Wasn't Biden supposed to have already resigned to let Harris be President by now? Because of his declining health, and all?

[Earnest]

Blackman's far from the most candescent star in the VC constellation, but his commitment to being consistently wrong outshines all the others, a thing to behold. I suspect he may actually be a communist given his apparent love of being publicly owned by real attorneys on this and other websites day in, day out.

[Sarcastr0]

<3

[DaivdBehar]

Just personal insult, committing the Fallacy of Irrelevance. You seem stuck in the 7th grade in your rhetoric.

[James Pollock]

Have you noticed that every time you complain about somebody issuing a personal insult, you always make sure to end with a personal insult?

[loki13]

We have at least learned one valuable thing.

If you're going to consult with a law professor, make sure it's a good one, and not one at the South Texas College of Law.

[James Pollock]

Oh, snap.

[Jaypd]

I remember when this blog cared about sharing intelligent thoughts. Then Barnett wrote a book with Blackman and got Volokh to let him on, and its really been to hell in a handcart ever since. Doesn't help that Blackman is easily their most prolific poster. I really miss the days when it was mostly Kerr, Somin, Volokh and Adler on here.

[DaivdBehar]

Yes, the Days of the Deniers. These are in denial that the lawyer profession is the most toxic occupation in the country, 10 times more toxic than organized crime. These are all Ivy indoctrinated, big government, lawyer dumbasses. They fail to see what is obvious to any breakfast coffee slurper, in any diner, 50 miles from the coasts.

[apedad]

Just personal insult, committing the Fallacy of Irrelevance. You seem stuck in the 7th grade in your rhetoric.

[James Pollock]

7th grade? Seems more elementary, my dear Watson.

[James Pollock]

As bad as the lawyer profession may be, they're still a step or two above the ranting Internet rando. I'd say that you know who you are, except you apparently do not.

[wolfefan]

Those were good times. The commentariat as a whole was a lot better too. The worst, most inane commenters back then would likely grade as average or better now. I don't mind Prof. Blackman or anyone else in particular, but I think the overall quality is lower and I don't know that the blog is meeting prof. Volokh's stated goal of educating the public.

[James Pollock]

"I don’t know that the blog is meeting prof. Volokh’s stated goal of educating the public."

Well, how are they doing on the UNstated goal of propagandizing the public?

[Sarcastr0]

Dude by the Capitol:

“The revolution is on. It’s here… I’m ready to die for the cause.”
“The south’s here. There’s five of us spreading all across your little DC part here.”

Working from home, but not loving that.

[wolfefan]

The church I work at is on Capitol Hill about 2 blocks from the LOC. I was working remotely today and got a call from the preschool in the building. They had to shelter in place for a while. Not loving it at all. People don't get that DC isn't just the government. It's old people, and kids, and churches, and eateries, and rich, and poor - just like everyplace.

[James Pollock]

In Oklahoma City, they targeted the daycare center. Parked the truck-bomb right next to it.

[Bubba Jones]

What's there to subpoena? I seriously doubt the "kitchen cabinet" was given any confidential information. They were asked their opinions. They gave their opinions.

So what?

Mr. Senator, I am happy to spend the next hour of your time recounting all the brilliant things I told my friend. No, I don't have anything to report about what he told me. He just asked my opinion on a news article.

[wolfefan]

Hello Prof. Blackman - thanks for removing that part of the post. It's hard to admit that we were wrong, or even just could have been wrong, sometimes. I know I don't like to do it.

[eyesay]

"Update: An earlier version of this post said that the attorney-client privilege would not be attached. I am not certain that is correct was wrong, and removed those assertions."

Fixed it for you.