Wednesday, April 20, 2011

All the President's Men: Executive Privilege 101. The question is, does Obama want to claim the Gunwalker scandal as his own?

"I am not a Gunwalker crook."

Well, folks, in the wake of Darrell Issa's demand to Kenneth "Gunwalker Man" Melson to stand and deliver Gunwalker scandal documents or face a contempt hearing, it looks like the only way Melson's going to defer his date before the judge is for Obama to try to wrap the "executive privilege" cloak around him and all the other gunwalker scandal felons in ATF and DOJ.

What is executive privilege? provided an excellent thumbnail explanation in 2009, Executive Privilege 101: A Primer on Executive Privilege for the Kagan Nomination. I have emphasized some passages.

The earliest American example of executive privilege may be President Thomas Jefferson’s claim that he could keep a letter from a military advisor secret from Vice President Aaron Burr’s treason tribunal, but the Supreme Court did not begin to define the privilege’s contours until the White House tried to block disclosure of the now-famous Nixon tapes.

The Court’s decision eventually led to the tapes’ disclosure, but the justices recognized in their 1974 United States v. Nixon decision that “those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.” Presidents must have a limited power to resist disclosure of certain information when keeping that information confidential is necessary to ensure a well-functioning executive branch of government. This power exists in addition to other checks on the disclosure of government documents, such as the president’s power to classify sensitive national security information.

The term “executive privilege” is often used as a blanket term to refer to any presidential assertion that an executive branch document should not be disclosed, but the courts have recognized both a stronger and a weaker form of executive privilege.

The stronger “presidential communications privilege”

The stronger form is known as the “presidential communications privilege.” This relatively robust privilege applies to communications made directly to the president so long as those communications occur “in performance of [a president’s] responsibilities” and “in the process of shaping policies and making decisions.” The presidential communications privilege may also apply to communications “authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.”

Communications authored by agency officials — executive branch officials outside the White House — are not subject to the presidential communications privilege unless the documents were specifically solicited and received by the president or an appropriate White House advisor to the president.

The weaker “deliberative process privilege”

The weaker form of executive privilege is known as the “deliberative process privilege,” which applies to discussions among executive branch officials that are part of the government’s decision-making process. This privilege can apply to executive branch officials outside of the president’s inner circle, but it is both more limited in scope and easier to overcome.

As Judge Patricia Wald explained in the seminal Espy case, “[t]he 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, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the governments deliberations.” . . .

Who can claim executive privilege?

Either the sitting president or a former president during whose term an allegedly privileged document was created may assert executive privilege. President Barack Obama issued Executive Order 13489 on his second day in office, which sets out procedures permitting both current and former presidents to invoke executive privilege with respect to presidential records kept in the National Archives, and defining the role of the Archivist of the United States in making these records public.

The archivist must make the current and former president aware of any soon-to-be-disclosed documents which, if disclosed, might “impair national security (including the conduct of foreign relations), law enforcement, or the deliberative processes of the executive branch”—although a president may still invoke executive privilege with respect to documents not identified by the archivist.

The archivist, under normal circumstances, will also give the current and former presidents 30 days to decide whether to assert executive privilege before those documents are released. But this 30-day period can be reduced when the White House, Congress, or the judiciary seek presidential records. . .

The courts have consistently held that executive privilege is not absolute and can be “overcome by an adequate showing of need.” This is a flexible standard and does not lend itself to clear predictions about whether a particular assertion of executive privilege will be upheld, but the courts have provided some guidelines to govern claims of executive privilege. The Supreme Court held in United States v. Nixon, for example, that a claim of executive privilege will normally be defeated when the privileged information is needed to provide evidence in a criminal trial — although the strong presumption against revealing information that would jeopardize national security would control even in this instance.

The courts have been much less eager to breach the privilege with respect to congressional hearings. Case law suggests that a claim of executive privilege may ultimately be defeated when the privileged documents are “demonstrably critical to the responsible fulfillment of [a congressional] Committee’s functions,” but courts generally encourage “negotiations” between Congress and the executive branch, and will only step into a dispute over privileged documents if the political branches fail to reach a compromise.

A more complete briefing on executive privilege by the Congressional Research Service can be found here: Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments, Updated August 21, 2008, by Morton Rosenberg, Specialist in American Public Law, American Law Division.

Will Obama fold, or raise the ante of personal risk?

To invoke executive privilege will be tricky for Obama, raising the stakes and bringing far more unwanted publicity, in part because he will be claiming EP trumps the Congressional right to know facts about the murder of a federal law enforcement agent. It also flies in the face of Obama's claim of wanting more transparency. But those are really nothing compared to this: if he invokes executive privilege, it makes the Gunwalker Scandal inextricably HIS. Newell, Melson, Breuer and Holder will all be Obama's "President's Men." That, plus the fact that merely invoking EP will convince most of the people who hear about it that he, Barack Hussein Obama, the "Lightworker," really does has something to hide about the true facts of the murder of two federal agents and hundreds of Mexican citizens.

My bet is, he'll double down on disaster, if for no other reason than the "Dear Leader" cannot admit error of any kind.

Perhaps he should start practicing his own Nixonian growl, "I am not a Gunwalker crook."


Kurt '45superman' Hofmann said...

Ah--you strike straight to the heart of the question I've been asking myself.

How does the timing work on this? Would The Lightworker have to make his "executive privilege" claim within a certain number of days of Issa's filing a contempt of Congress charge?

Mark Matis said...

I see that the Muslim in Chief is coming to Florida next week. What would be a good sign to greet him with?

I doubt that y'all would go for MY favorite:

"Hey, Barack, whattaya say?
How many pigs did you kill today?"

TPaine said...

Well, we now see that BATFE has again ignored the deadline Grassley set. Like we didn't see THAT ONE coming. Someone has to blink soon or they'll all go blind. Grassley keeps threatening and BATFE keeps on ignoring him. Who's on first, what's on second, and I don't know is on third. Bases loaded, and an RPG hits home plate.

I'm still guessing this will all be tucked away somehow, and I'll bet it has nothing to do with executive privilege. 'Vegas odds?

Anonymous said...

Oh, yes he is.

Anonymous said...

Let's see,Obama already told a Mexican journalist that neither he or Eric Holder authorized Fast and Furious. If he now uses EP he's really gonna look stupid!