Case of tell-all press secretary speaks of possible legal limits

Amid the furor behind the specific allegations of President Bush’s ex-White House press secretary Scott McClellan, and the ensuing fallout with his former friends and with Bush, lies an important question: Should there be a legal limit on what a communications official or press secretary can say about his former boss?

With a couple of exceptions, the law currently places few limits on what an ex-employee can say about a former principal. An employee could be asked to sign a non-disclosure or confidentiality agreement prior to employment. And those in the national security and intelligence realms face constraints on information that can be publicly discussed.

The McClellan episode places on the table the possibility of the imposition of an official standard on former aides.

Another kind of advocacy

The most directly analogous field to McClellan’s line of work — advocating on behalf of the president in the court of public opinion — is the law.

In law, a clear standard exists about what a lawyer can say about a former client. The American Bar Association’s Model Rules of Professional

Conduct clearly lay out a lawyer’s duty to a former client: “A lawyer who has formerly represented a client ... shall not thereafter … reveal information relating to the representation.” In other words, no talk-show chatter or tell-all books.

The law puts a premium on attorney-client communications. In a 1998 case (Swindler & Berlin v. United States) involving notes an attorney took following a conversation with onetime Clinton administration higher-up Vince Foster, the U.S. Supreme Court went so far as to hold that attorney-client privilege existed even after the client had died. (Foster committed suicide.)

Chief Justice William H. Rehnquist’s opinion emphasized the importance of clients being able to speak freely to their advocates: “Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel.”

Just as a lawyer relies on the honesty of his client in order to be of the best service, so, too, must a press secretary be able to glean all the relevant information to represent his principal. The principal, in turn, has to have confidence that the information provided is secure.

In the case of McClellan, Bush relied on his mere sense of his press secretary’s loyalty — a decision that backfired for both men.

It could also be argued that the duties of a press secretary — namely, distributing news and public statements to members of the press corps on a regular basis — render the imposition of a formal prohibition on that person’s public statements impracticable. But statements made during the course of the person’s employment would be allowable. This allowance would be similar to a client waiver of his attorney’s mandate for confidentiality.

There is no question that McClellan, in his level of anti-Bush vitriol and outspokenness, is an outlier. Former Clinton staffer Paul Begala put McClellan’s action into perspective on CNN’s “Larry King Show”: “If [McClellan] would have asked me, I would have said hold it until the administration is done, until the president’s written his book. In my case, I never have written one and never will.”

Most former press secretaries and other high-level governmental aides are like Begala, and McClellan is clearly an exception. But it is the exceptions that often cause laws to be made.

— Seth Gitell

Seth Gitell, a former press secretary to Boston Mayor Thomas M. Menino, is a graduate of New York University School of Law. He can be contacted at gitell@aol.com.