Posted by Curt on 21 June, 2012 at 6:00 am. 18 comments already!

So let’s go down the list. He began with ObamaCare…which very well might be ruled unconstitutional quite soon. Most recently he bypassed Congress and enacted The Dream Act all by his lonesome after stating a year ago that he didn’t have the power to do that. Oh, lets not forget that he refuses to defend DOMA, a federal law passed in 1996 and signed by President Clinton. And now this:

President Obama on Wednesday asserted executive privilege over documents sought by a House panel ahead of its vote to hold Attorney General Eric Holder in contempt of Congress.

It’s the first time Obama has used executive privilege since taking office. A White House aide said the president had gone longer without asserting the privilege in a congressional dispute than any other president in the last three decades.

Rep. Darrell Issa (R-Calif.), the chairman of the House Oversight and Government Reform Committee, said his panel was “evaluating” a letter from Deputy Attorney General James Cole asserting the privilege that arrived minutes before Issa’s committee was to begin contempt proceedings

He’s asserting deliberative process privilege instead of presidential executive privilege:

As I’ve written before, there are two types of executive privilege. One is a strong form rooted in the Constitution, called the presidential communication privilege. But there is another type, much weaker and rooted in common law instead of the Constitution, called the deliberative process privilege. That second, weaker variety is what President Obama invoked today regarding Holder.

It’s still the White House asserting the privilege, because only the president can assert executive privilege for his entire administration.


The point of the “deliberative process privilege” is that you don’t want executive-branch officials afraid to be candid with each other in day to day operations for fear that their communications will later be subpoenaed by Congress and aired on the evening news. So Obama has an argument there; the counterargument is that, er, a privilege shouldn’t be abused as cover for hugely damaging and possibly illegal DOJ activity.

And John Hinderaker tears apart his use of the privilege: (read the whole post, he destroys all of their arguments)

the case that is most directly pertinent to Holder’s assertion of executive privilege is In re Sealed Case (Espy), 121 F.3d 729 (D.C. Circuit 1997), which, along with Judicial Watch v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2008), which cites and relies upon Espy, contains the most up to date judicial exposition of the doctrine of executive privilege. Unbelievably, Holder’s letter never cites or mentions the Espy case. If a first-year associate wrote a memorandum for me in which he failed even to mention the most significant case, I would fire him. (The EspyCourt noted that its holding as to how deep into the federal bureaucracy the presidential privilege may extend was in the context of a subpoena in a criminal proceeding, and a conflict between the executive and Congress might implicate different factors. That appropriate qualification in no way sheds any doubt on the Court’s exposition of the deliberative process privilege, as discussed below.)

Fifth: it is easy to understand why Eric Holder, functioning as a politician and not a lawyer, omitted any mention of the Espy case. That case lays out the legal framework under which Obama’s assertion of executive privilege will be judged. The D.C. Circuit Court of Appeals explained that the term “executive privilege” actually encompasses two distinct privileges:

“[E]xecutive privilege” is generally used to refer to a wide variety of evidentiary and substantive privileges that courts accord the executive branch. Consequently, we refer to the privileges asserted by the White House more specifically as the presidential communications privilege, or presidential privilege, and the deliberative process privilege. …

The most frequent form of executive privilege raised in the judicial arena is the deliberative process privilege; it allows the government to withhold documents and other materials that would reveal “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”

In the Fast and Furious case, the “presidential privilege” clearly does not apply. The administration has said that President Obama had nothing to do with any of the relevant events, and the president says that he learned of the Fast and Furious program “on the news.” And Holder’s letter makes it clear that it is the second type of executive privilege, the “deliberative process privilege,” on which the administration relies:

[The documents under subpoena] were created…in the course of the Department’s deliberative process concerning how to respond to congressional and related media inquiries into that operation. …

[T]he doctrine of executive privilege…encompasses Executive Branch deliberative communications. …

Presidents have repeatedly asserted executive privilege to protect confidential Executive Branch deliberative materials from congressional subpoena.

[At issue is] the confidentiality of Executive Branch deliberations….

But Holder’s letter completely fails to acknowledge what a weak reed the “deliberative process privilege” is in the circumstances of this case. In Espy, the court said:

The deliberative process privilege does not shield documents that simply state or explain a decision the government has already made or protect material that is purely factual….

The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need. … For example, where there is reason to believe the documents sought may shed light on government misconduct, ‘the privilege is routinely denied,’ on the grounds that shielding internal government deliberations in this context does not serve ‘the public’s interest in honest, effective government.’”

Emphasis added. Here, the committee’s subpoena is explicitly intended to explore issues of “government misconduct.”

This man swore to the entire country that he would preserve, protect and defend the Constitution. He has done everything but. Instead we may be seeing the most corrupt Administration in 40 years.

Exit quote:

According to internal DOJ documentation via a confidential source within the DOJ, Attorney General Eric Holder knows the entire story about Fast and Furious, had for a long time, and in fact approved the operation. Additionally memos show that President Obama had full knowledge of the program and received weekly briefings from DOJ personnel. They also detail that Holder ordered a “lockdown” and “cleansing” of documents after being briefed on the murder of border agent Brian Terry. Additionally internal memos, which Issa knows exists, detail how President Obama and his advisors were briefed on the incident and according to sources with knowledge of the content of the conversation and subsequent memos that there was a “concerted effort” to “put this story to pasture ASAP”.

Oh yes, they have something to hide.