I want the Blue Book.

Photographer: Paul Drinkwater/NBC/NBCU Photo bank/getty images

Government Playbook for Prosecutors Should Be Public

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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An appeals court has held that the Department of Justice need not make public a guide book that tells federal prosecutors what information they must give to defense attorneys. The decision is legally wrong, as two of the three judges said in a concurring opinion. The government's so-called Blue Book is an important document that deserves public scrutiny. The full court should reverse the panel’s decision, or else the Supreme Court should.

The issue in the case is blissfully straightforward. The Freedom of Information Act requires disclosure of most government documents, subject to some exceptions.

One of the exemptions (exemption five if you’re keeping track at home) covers government documents that would be protected in ordinary litigation between private parties as part of attorney-client confidentiality.

The exemption makes sense. There’s no reason for FOIA to make the government worse off in litigation than a private party would be.

One category of protected documents is any material that's considered to be attorney work-product. Again, the exemption is logical.

But where the U.S. Court of Appeals for the District of Columbia Circuit went wrong was in concluding that the Justice Department’s Blue Book should count as such a document.

The National Association of Criminal Defense Lawyers asked for the Blue Book in a FOIA request. In an opinion by Judge Sri Srinivasan, considered a leading contender for nomination to the Supreme Court, a panel of the court held, 3-0, that the manual counted as an attorney work-product and therefore was exempt from FOIA.

The chief argument advanced by the defense lawyers group was that the attorney work-product exemption should only apply to documents produced in anticipation of specific litigation -- not to general government guidelines that purport to state the law as it would apply in all cases.

That’s a sound, practical way to distinguish when the exemption should apply and when it shouldn’t.

The trouble is that in 1992, the D.C. Circuit Court rejected that distinction in a decision holding that the National Labor Relations Board didn’t have to disclose internal documents giving advice to Board lawyers on general litigation strategy.

Srinivasan’s opinion cited that precedent. And it continued by saying that since the Blue Book in its entirety is intended for prosecutors to use in litigation, it’s covered by the exemption.

Two other judges on the panel, David Sentelle and Harry T. Edwards (for whom I worked almost 20 years ago) joined Srinivasan’s opinion. But they separately said that although a panel of the appeals court is bound to follow the circuit’s precedent, they thought the precedent was wrong.

And it is -- for reasons that the full court should take up if and when it reconsiders the panel’s decision and its own 1992 precedent.

A manual such as the Blue Book is completely different from the kind of attorney work-product envisioned by the FOIA exemption. It isn’t -- and in a democracy, shouldn’t be -- a bag of tricks for prosecutors to use that would enable them to avoid their constitutional obligation to disclose evidence that might be exculpate a defendant.

Rather, the Blue Book is an important document for running the Justice Department: a quasi-official statement of what the department believes are its legal obligations to the defense in criminal prosecutions.

Documents stating the government’s official legal position should almost always be public in a democracy. The need for disclosing the document, however, is especially great when disclosure itself is the topic that the document discusses.

In a typical criminal case, the defendant has no way to know what material the government has. Most of the time, defendants have to trust that prosecutors disclose exculpatory material.

Thus, there are really two separate, equally significant reasons to disclose the Blue Book. One is the general need for government transparency. The other is the asymmetry of information between the prosecution and the defense, and the need to understand the government’s practices in order to uphold the rule of law.

As a final note, it’s intriguing -- and for liberals, a little worrisome -- that Srinivasan either didn’t agree with Sentelle and Edwards or was unwilling to join them in insisting that the D.C. Circuit precedent is wrong. Unlike Sentelle, who was a private litigator before becoming a judge, or Edwards, who practiced labor law before becoming a distinguished academic and joining the D.C. Circuit Court, Srinivasan worked for the Justice Department for years before becoming a judge. It’s perhaps natural that he would side with the department.

In this way, Srinivasan is typical of Barack Obama’s Supreme Court nominees. Justice Elena Kagan worked for the White House, Justice Sonia Sotomayor was a state prosecutor, and Judge Merrick Garland worked as a federal prosecutor and in Justice Department.

The younger crop of Democratic nominees is thus more inclined to identify with the interests of the government in general and prosecutors in particular.

It’s possible, of course, that Srinivasan didn’t want to create controversy that might affect his future possibility of a Supreme Court nomination. If so, he can be forgiven, since the other judges’ concurrence is enough to draw attention to the decision.

But if he thinks the Justice Department should be able to keep the Blue Book secret, liberals should take note.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
James Greiff at jgreiff@bloomberg.net