The speaker of the House’s press secretary, Michael Steel, sent out an e-mail this morning that reads in part:
As we approach Thursday’s contempt vote, there is some misunderstanding and misinformation out there on executive privilege. White House Press Secretary Jay Carney and others seem to be hanging their hats on Chairman Issa’s statement that there is currently no evidence that the White House was involved in the cover-up. That is exactly our point. We never, ever suggested the White House was involved. That’s why it was so bizarre that the president asserted executive privilege. Executive privilege protects internal White House decision-making. True, presidents have asserted it over other executive branch documents and communications. But the courts have ruled those claims to be invalid and ordered them overturned. (See “Nixon, Richard Milhous”)
As the D.C. Circuit Court wrote in 2004 in its Judicial Watch Inc. v. Department of Justice decision, “communications of staff outside of the White House in executive branch agencies that were not solicited and received by such White House advisors could not [be covered by executive privilege].” Also, as noted in this CRS [Congressional Research Service] report, the D.C. Circuit Court ruled in 1997, “the presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decision-making by the President.”
He’s right. If “executive privilege” means the president can shield deliberation within a department on a policy matter then we would have no oversight by the legislative branch at all. To borrow a dilemma for the left from the Obamacare cases, if internal Department of Justice documents on Fast and Furious are privileged, where would the Obama spinners draw the line? When would Congress ever be entitled to investigate executive branch departments. ( I know, I know.. when it’s a Republican president.)
Now you might ask what about “attorney client privilege”? Two problems exist with that, which is why the Obama team didn’t raise it.
First, there is no attorney-client privilege that can be invoked by the president against Congress because they work for the same client, namely the American people. As an aside, I love when that point comes up because it wonderfully illustrates how invoking phony privileges isn’t in the interest of Americans, but of the government officials who too often confuse their own interest in avoiding embarrassment with the nation’s interests.
Second, no one is suggesting the documents refer to a legal analysis of the Fast and Furious program. This was about policy and public statements about the program. That’s not information that would be subject to the attorney-client privilege even outside government.
In fact we don’t even know which “executive privilege” the White House is talking about. Todd Gaziano of the Heritage Foundation tells me, “It’s reasonable to demand that the White House and DOJ specify what types of executive privilege they claim are being invoked as to what documents. Congress and the courts might yield to some claims of privilege but not to others.”
For example, Gaziano explains, there is a species of executive privilege relating to national security. Is this about keeping secrets with (or from) Mexico? As for the “the deliberative process privilege,” this too is a type of executive privilege. But the jurisprudence on that suggests that while it can go beyond the White House, it doesn’t cover every person in government and it must often bend to legitimate oversight by Congress.
If he were a first-year law student asked to explain how the president could refuse to allow House oversight on a botched operation in which Americans and Mexicans died and the administration has twice had to cop to providing erroneous information to Congress, Eric Holder’s letter would get an “F.” He doesn’t set out the nature of the document being withheld, the type of privilege being asserted, or the argument as to why it supersedes the right of Congress to oversee executive branch misconduct.