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 (1st 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.
Very lawyerly.
I thought it meant, “Impeach me if you don’t like it.”
My first impression when I heard this news this morning is its like Holder/Zero taking the Fifth Amendment. Maybe this is something different however. Maybe Obama and Holder really have no implication to this story but want to further their dialog (for campaigning) that the Republicans are out of control right wing nuts. Look for Zero and his campaign to use this as a hammer to beat up on any and all Republicans – and especially Romney.
I hope Holder goes to jail for a very long time – probably not going to happen though.
Executive privilege is legitimately raised to protect the office of the president and its powers under the constitution, not merely to protect the president, himself. Like so many other tyrants, Obama cannot distinguish between himself and the office he occupies.
Knowing what we know of Obama and his narcissism, do you suppose he was attempting to protect the office (a noble endeavor) or the man (a venal endeavor)?
Right now the JournOlisters are trying out several memes to see which one will float. “Racists” for the low brow uneducated continuously grievous voter, “Bush did it” for the mealy-mouthed independent who could be discouraged with equivalence, and last but not least “it’s a politically motivated attack, nothing to see here” broad based denial for the general public.
They’re hoping to use the media for a smokescreen long enough to discourage the weak-kneed R’s in charge to back down. Here’s hoping people are already suspicious enough of this WH’s perpetual leaks in national security to wonder why they consider Holder’s emails more worthy of secrecy than the confidence of our international allies.
Until yesterday, many Americans had no idea that Fast & Furious was anything other than a bunch of car movies.
The MSM can try and spin as much as they want, but just the known facts about F&F will really turn off the American public. And to stonewall for so long, then go to Exec Privilege to hide other facts, will just make it worse. UNless, of course, the facts are that much worse.
“4 grounds for asserting executive privilege…”
What about “geez if this stuff gets out and this president’s involvement in and knowledge of F&F (not to mention lying about) is revealed, we’re screwed” privilege ?
I think that’s the one Obama is asserting.
We had Watergate, then Weinergate and now we will have Weaselgate.