Former Judiciary Chairman: Why Obama's Executive Privilege is Illegal

Hill reaction to today’s events came in a couple of flows. First, reaction to the contempt hearing itself and the 23-17 vote in favor of the resolution against Attorney General Eric Holder. Perhaps even more intense, though, was the reaction to President Obama’s assertion of executive privilege to keep subpoenaed documents under lock and key. Here’s a concise memo released this evening by Rep. Jim Sensenbrenner (R-Wis.), an attorney by trade who was House Judiciary Committee chairman for six years:

There are essentially 4 grounds for asserting executive privilege:  (1) the state secrets privilege, (2) the presidential communications privilege, (3) the attorney client or attorney work product privilege, and (4) the deliberative process privilege.

It appears that the President is relying on the deliberative process privilege.  The privilege, however, cannot be used to protect documents in the face of wrongdoing.  The DC Circuit wrote that the deliberative process privilege is more easily overcome than the presidential communications privilege.  It continued:  “Moreover, the privilege disappears altogether when there is any reason to believe government misconduct occurred.”   In Re: Sealed Case, 121 F.3d 746 (D.C. Cir. June 17, 1997, No. 96-3124).

The First Circuit agreed.  It found that, 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.”  Texaco Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867, 885 (1^st Cir. 1995); see also In re Comptroller of the Currency, 967 F.2d at 634 (“the privilege may be overridden where necessary to ‘shed light on alleged government malfeasance.’”)

The Department literally asserted this privilege in the face of Congressional contempt proceedings.  It clearly cannot argue that there is no reason to believe that government misconduct occurred.  The assertion of the privilege was therefore illegal.

The Attorney General needs to produce the documents pursuant to Congress’s subpoena.