The Corner

Obama Invokes Executive Privilege

Put aside the obvious charge that President Obama is now embracing the powers of the presidency that he once railed against, and let’s look at the actual invocation of executive privilege in the Fast and Furious matter. Executive privilege comes in at least two forms — the first, and strongest, form of privilege is the “presidential communications” privilege, which, as its name suggests, deals with direct communications with the president (or his closest advisers who are communicating on his behalf, such as gathering information to convey advice to the president). Here, there is no claim that any of the communications at issue involved or even related to the president, so the president does not invoke the presidential communications privilege.

Instead, the president invokes the second, more common, form of “executive privilege,” the so-called “deliberative process” privilege. This is a qualified privilege and protects pre-decisional communications within the executive branch. The theory behind the privilege is that government decision-makers should not live in a fishbowl, and that candid, and sometimes unpopular, advice may be needed to make the best decisions. Exposing those decisions to the scrutiny that public document dumps entails (think how much you’d enjoy your entire e-mail outbox on the front page of the New York Times) would necessarily chill internal deliberations and result in less effective government decision-making. 

Here, the president (on the request and advice of the attorney general) concluded that the deliberative process privilege applied to purely internal Department of Justice deliberations regarding how the department should respond to both congressional inquiries and media inquiries. None of those deliberations were proximate to the White House or the president — but entailed only DOJ employees in the ordinary course of their jobs (and we don’t know how high up in DOJ those deliberations went, so we don’t know if the attorney general himself was involved).

Notwithstanding the lack of proximity to the president, there is a reasonable basis for invoking the privilege with respect to pre-decisional communications involving how the Justice Department should respond to congressional inquiries. There would be separation-of-powers problems if Congress could readily peel back the curtain from any executive-branch agency to see which agency employee said what to whom about any question that a congressional committee might pose to the agency. But media inquiries? The Department’s Office of Public affairs plays an important function, but is it so important that the process by which it decides to answer a blogger’s question should be the matter of a presidential invocation of privilege? Holder provides no real support for that proposition in his letter to the president, and it seems unlikely that a court would find a significant executive interest in such everyday and relatively mundane decisions.

#more#Saying that the invocation of privilege is reasonable as to a particular category of communications is not the same as saying that the privilege should be upheld. As noted, the deliberative-process privilege is a qualified one, and it gives way to a substantial need by a coordinate branch of government. Thus, it stands little chance of surviving in the context of, say, a criminal trial or an impeachment proceeding. Where allegations of wrongdoing are at issue, the qualified deliberative-process privilege is not much of a hurdle to compelled disclosure. 

Here, Congress does have a legitimate legislative interest in the Fast and Furious inquiry. While Congress lacks a pure “oversight” function — a point many of its members fail to understand — it can make inquiries of the executive branch as part of an investigation in exercise of its lawmaking authority. Thus, if Congress is considering what legal changes need to be made with respect to gunwalking in DOJ/FBI/ATF investigations, the legislative “need” is strong. Also, and perhaps unspoken in this context, Congressman Issa may be making an inquiry about wrongful conduct at DOJ as a basis for making a referral on impeachment of the Attorney General. If the committee were to invoke such an interest, deliberative process would give way rather readily.

Holder claims here that Congress doesn’t have an interest in inquiring about how DOJ responds to congressional inquiries, as that function doesn’t relate to lawmaking at all but to policing how an agency deals with Congress. But that seems to give short shrift to the overall lawmaking nature of the inquiry here. Congress could have an interest in these particular documents because they might include information relevant to the underlying legislative inquiry about Fast and Furious — and further the lawmaking function. So if the House were eventually to sue to enforce the subpoena, it seems likely that this particular invocation of privilege would fail the need test.  

What’s next? A House Government Reform Committee vote, followed by a full House vote, then a referral to the U.S. attorney, who will decline to prosecute contempt because of the privilege invocation (or the House may simply bypass that step, given its frivolousness). Failing a criminal prosecution for contempt, if Issa and company remain resolute, a House civil suit to enforce the subpoena will follow, as happened in the Rove/Miers contempt situation.

On the political side, one thing now is clear. Fast and Furious is owned, lock, stock and barrel, by the president. No longer is this a merely DOJ problem. The president’s invocation of his privilege makes the problem his own.

Shannen W. Coffin is a contributing editor to National Review. He practices appellate law in Washington, D.C.

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