Ominous Oversight: The Usurpation of an Executive Agency's Right to Candid and Independent Legal Advice During Prohibited Personnel Practices and Retaliation Investigations and Prosecutions.

• Author: Norman, Ashley D.

1. Introduction to the Dilemma Posed by the OSO Reauthorization Act of 2017 II. Background A. History, Structure, and Statutory Charge of the OSC B. Governmental Privileges and Executive Agencies 1. Attorney-Client Privilege 2. Attorney Work Product Privilege 3. Executive Privilege C. Separation of Powers III. Recommendations A. At the Direction of the Chief Executive, Executive Agencies Must Withhold from Providing the OSC with Privileged Documents B. Proposal for a Privilege Review Commission IV. Conclusion I. INTRODUCTION TO THE DILEMMA POSED BY THE OSC REAUTHORIZATION ACT OF LOI?

   Imagine that you are a government attorney working in labor and employment law at the Environmental Protection Agency (EPA). You have been at this job for five years and through hard work and determination, you have built a lot of trust in the government officials you advise. They come to you for counsel on various issues. You have been working with a particular high-level official on a labor issue for the last two years to remove an employee for failure to perform his duties. In the midst of the process, this employee filed an Inspector General (IG) complaint against the high-level official that was unsubstantiated after a six-month investigation. After the IG complaint results were finalized, you are contacted by the Office of Special Counsel (OSC) and they demand all of your communications with this high-level official over the matter. As you start pouring through the hundreds of e-mails regarding this issue, you find e-mails discussing the legal merit of various actions but you also find e-mails where the official is venting to you about their frustrations about the labor and employment policies of the federal government and e-mails where he is venting about this particular employee. You know that turning over these e-mails not only harms the agency's legal position in what will likely be a finding of a prohibited personnel practice for retaliation, with a potential prosecution, brought to bear by the OSC, [1] but it also destroys the trust you have built over the last five years with this high-level official.

   This precarious situation is now a reality for government attorneys that work for an agency that may find themselves the subject of an OSC investigation. The OSC is a small, yet powerful, independent agency that investigates whistleblower retaliation and prohibited personnel practices. [2] Despite the OSC's ability to access a large volume of non-privileged information, [3] the OSC became frustrated that executive agencies under investigation were withholding documents from the OSC based on the attorney-client privilege. [4] After providing testimony to Congress about this frustration in March 2017, [5] Congress explicitly provided in the Office of Special Counsel Reauthorization Act of 2017 that an agency's claim of common law privilege would not prevent the OSC from obtaining the privileged material. [6]

   Other than OSC's word, there is no independent statutory guarantee that this privileged information will be protected from Congress or even the public. The OSC maintains that it takes steps to protect the privileged material and would not distribute the privileged material without agency consultation, [7] which is not defined. Agency consultation may be as minimal as notifying the agency of the intent to distribute. Without any definite guarantees preventing further distribution, OSC's access to privileged material will have a chilling effect on the free flow of information between agency officials and agency attorneys. Even if there were statutory or regulatory restrictions on further distribution, the OSC is conducting an adversarial investigation into the agency and can bring claims for prosecution, and this alone will cause agency officials to be fearful that his or her discussions with agency counsel will be exposed.

   It would be untenable to imagine that Congress could pass a law directing criminal defense attorneys to hand over all of his or her notes to investigators. While not directly analogous, the principles underlying the justifications for maintaining attorney-client privilege are not inapplicable to agencies, especially when the investigating agency can bring a case for prosecution. The touchstone for the application of the attorney-client privilege is the adversarial process. [8] The system is broken when we are required to hand over to prosecutorial bodies a blank check to obtain anything they want to obtain in aid of a prosecution. When government officials find out that discussions with their lawyers will be disclosed to an adversarial independent agency, they will avoid those discussions and the agency will be deprived of important legal advice.

   Agency officials must be encouraged, when not acting adversely to the interests of the agency, to be open, honest and candid with the attorneys for the agency. A government attorney does more than simply recite the law-they provide confidential advice to agency officials that act within the scope of their employment. This confidential advice is protected by privileges rooted in the Constitution. It is of paramount importance to safeguard this confidential advice from disclosure to third parties so executive agencies can have the benefit of the sensitive discussions with their attorneys surrounding labor and employment decisions without fear of having their deliberations exposed. In line with the theory underlying attorney-client privilege, [9] the protection of these deliberations will result in the most effective legal representation.

   In a question and answer sheet released by the OSC on its ability to access privileged material, the OSC compares itself to the Office of the Inspector General (OIG) in defense of its power to gain access to privileged information. [10] It is curious that the OSC chooses the OIG as a comparator. While Congress created the OIG under the guise of more accountability in government, one cannot ignore one of the other clear motives of Congress in establishing the OIG: access to more information. [11] By creating a plethora of reporting requirements, Congress was able to expand its access to executive information through strategically created IG positions. [12]

   Despite the OSC's insistence that privileged materials provided to it will not be distributed to Congress without "agency consultation," a review of the Fast and the Furious ruling. [13] demonstrates that an executive agency's concern about further disclosure is well founded. In that case, executive agency coordination with the OIG, which led to a public OIG report [14] on the matter, ended up weakening the agency's claim of privilege. The court found that even though the documents were protected under the deliberative process privilege, the disclosures in the public OIG report led to the agency being unable to articulate any harm that "it did not already bring about itself' and the court denied the claim of privilege. [15] Additionally, federal cases that recognize a governmental attorney-client privilege make it abundantly clear that to successfully claim the privilege, the agency must establish confidentiality at the time of the communication and then ensure confidentiality is maintained. [16]

   For these reasons, this article recommends executive agencies stop providing privileged material to the OSC, at the direction of the Chief Executive. The law that requires the release of privileged information between executive branch agencies violates the constitutional doctrine of separation of powers. The requirement to turn over privileged material to the OSC unconstitutionally encroaches on the executive branch and weakens any future claims of privilege that executive agencies may wish to preserve. The President has a duty to resist unconstitutional provisions that encroach on powers of the presidency [17] and must protect the constitutionally recognized privileges that attach to the executive branch, which the President controls.

   This article further recommends that until this dispute is decided by a court of law, the spirit of negotiation between, and within, the branches of government be resurrected [18] and executive agencies enter into negotiations with the OSC and Congress with the ultimate goal of implementing a system of independent review of the material the agency claims is privileged based on mutually agreed upon standards. An independent review will help allay the fears of the OSC that the privilege is being used to shield executive wrongdoing; while also reassuring the executive agency being investigated and prosecuted that material actually falling under a privilege will be protected.

   In reaching these conclusions, this article will first provide an overview of the history, structure and statutory charge of the OSC. Next, it will analyze the relevant common law governmental privileges at issue. While some critics note that the rationale behind privileges are greatly diminished in the government context, courts have uniformly recognized the existence of executive privilege, the attorney-client privilege, and the attorney work-product doctrine in the governmental context. [19]

   To conclude the background section, this article will address separation of powers concerns. Specifically, it will discuss whether Congress can constitutionally enact legislation governing the ground rules of information sharing of privileged material between two agencies in the executive branch and if it can, whether the executive has any basis in law to defy it. This article then addresses the related question of whether such a dispute is justiciable. Lastly, this article discusses the ultimate recommendation that the Chief Executive direct executive agencies to stop providing privileged material to the OSC and work with the OSC and Congress to establish an independent privilege review commission.

2. BACKGROUND

   1. History, Structure, and Statutory Charge of the OSC

      The OSC was...