June 21, 2012

"Executive privilege? My *ss"

These were the words of Archibald Cox upon being informed that President Richard Nixon had invoked the same after being order to produce audiotapes of the President's Oval Office conversations between him and people within his administration.

 The Supreme Court would go on to address "Executive Privilege" in the 1974 case, U.S. vs. Nixon. Even though the Court did not reject the claim of privilege out of hand, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence. This was because Nixon had asserted only a generalized need for confidentiality.

As a result of the Court's decision, the clock starting to wind down on the Nixon White House and two weeks later, arguably brought about the President's resignation.

Now, fast forward to 2012. The claim of executive privilege, made by President Obama to keep testimony or documents from compelled revelation, is not an absolute one. Thus, the claim must state the basis for its invocation. In US v. Nixon, the Court articulated the only three constitutionally permissible bases for the presidential claim of executive privilege.

The only bases for the invocation of the privilege are the need to protect secret deliberations and communications intended ultimately for the president that pertain to (a) military, or (b) diplomatic, or (c) sensitive national security matters. Just because two or more people in the White House discussed a matter or reviewed documents does not clothe their discussion or their document review with executive privilege. The conversation or document review must be integral to advising the president on his official duties, and it must fit into one or more of (a) or (b) or (c) above.

The invocation of the privilege can only be made by the president himself. Thus, President Obama will need to articulate and explain into which category--(a) or (b) or (c) above--his claim of privilege falls, and he will need to do so personally, either in person or in writing. The mere request by the attorney general for the president to invoke the privilege does not lawfully invoke it. As of this writing, the president has not yet done this.

When the president invokes the privilege, it is to prevent himself or others in the White House from being compelled to testify or to produce documents before a court or before the Congress. Since only the president can invoke the privilege, he must be aware of the subject matter addressed in the subpoenaed documents and he must know that the subject matter was discussed or the subpoenaed documents were reviewed as part of the process of advising him on running the Executive Branch.

It is unheard of for Department of Justice officials to bring documents in an on-going criminal investigation to the White House, and discuss them there. It is equally unheard of for White House advisors to go to the DoJ and discuss documents pertaining to an on-going criminal investigation there. We know that the documents in question pertain to an on-going criminal investigation because Attorney General Holder has repeatedly so stated in sworn testimony.

Under the Federal Rules of Criminal Procedure, Justice Department documents involved in an on-going criminal investigation can only lawfully be discussed or reviewed--at the White House or at the Department or anywhere else--with persons lawfully involved in the criminal investigation or the administration of the criminal justice system. That leaves very few human beings outside the Department and inside the White House with whom Attorney General Holder or his Justice Department colleagues may have lawfully discussed these documents. Certainly the president himself would be in this category.

Obama's action, or I should say, reaction, will probably add fuel to the fire. The House Oversight Committee has now voted to hold Holder in contempt and Speaker John Boehner has called for a vote of the full House early next week. Obama can't stop these actions from happening, but for now, he has staved off any revelation of the truth behind Fast and Furious.

Simply put, presidents typically cite executive privilege to protect aides within the White House, not Cabinet members, from disclosing sensitive information under the reasoning that a president’s closest advisers should be able to give him their advice freely in private. What is the President and his Attorney General keeping secret?

We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.