Thursday, June 21, 2012

The law and history of executive privilege

I found a lot of the discussion on TV and radio yesterday less than helpful in explaining what exactly executive privilege is and how it may be invoked. So here are some links from lawyers and experts to give us a clearer picture of what is involved with President Obama's use of privilege to shield the documents that the House Oversight Committee has subpoenaed from the Department of Justice. Knowing when executive privilege has or has not been used successfully in the past is all good to have laid out because I've found some of the talking heads on TV to be remarkably uninformed about when executive privilege can be invoked. There were some wild pronouncements that it could only be used when the President in involved and that is just not true.

Andre Rudalevige at The Monkey Cage outlines the history of executive privilege has an interesting history of its use, especially its use to cloak deliberations as it is being used by Obama in this case. I found it very helpful to learn the details of some of the claims that recent presidents have made.

David Kopel explains which documents are being requested by the House though it's not clear which ones are in the batch of 1,300 documents that the contempt vote concerns. In general, they want to see documents concerning retaliation against the whistleblowers who came forward after Agent Brian Terry's death by a gun used in Fast and Furious and documents about the false letter that the DOJ gave to the House Oversight Committee as well as communications with the White House about that false letter and the cover-up between February 4, 2011 and December, 2011 when DOJ admitted that they had given a false letter to the House. So the question is whether the President can shield documents if they are specifically related to retaliation of whistleblowers which is against federal law or discussions concerning the DOJ having given false information to the House which would also be against the law if done deliberately.

Shannen Coffin has a very good summary of the legal status of executive privilege. Andrew McCarthy adds in some more analysis connecting to his specific instance.

Todd Gaziano of The Heritage Foundation argues that the President could and should waive privilege to cooperate with Congress in this instance and that an abuse of the claim of privilege ultimately weakens executive power.

John Hinderaker of Powerline looks at the letter that Holder wrote to President Obama asking for the claim of executive privilege and finds it "a terrible piece of legal work." His letter doesn't even cite the most relevant legal cases on what the courts have said about executive privilege. It is a case from 1997, In re Sealed Case (Espy), from which the framework for executive privilege protecting deliberation, as Holder is relying on here, stems.
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.”
According to Hinderaker, the privilege described in Espy doesn't apply. He quotes again from the court in Espy.
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.’”
Shielding documents that "may shed light on government misconduct" would seem to apply to the documents that the House is seeking since they are looking at misconduct in retaliation against whistleblowers and discussions about the submission of a false letter to the House. That would seem to qualify as misconduct.

Remember when the media and liberals loved whistleblowers?

Hinderaker concludes,
Why is the Attorney General of the United States reduced to making transparently bad legal arguments in order to hide government records from public view? The question, really, answers itself.