Obama’s Claim of Executive Privilege: It’s Frivolous

Today Deputy Attorney General James Cole advised Darrell Issa, Chairman of the House Oversight and Government Reform Committee, that the Department of Justice will not respond to the committee’s subpoena of certain documents relating to the Fast and Furious scandal. Instead, the Obama administration is asserting a claim of executive privilege for the reasons laid out in Eric Holder’s letter to President Obama dated June 19.

Holder’s letter is a remarkable document. Viewed from a strictly technical standpoint, it is a terrible piece of legal work. Its arguments are weak at best; in some cases, they are so frivolous as to invite the imposition of sanctions if they were asserted in court. I will explain why momentarily, but first this observation: if an opposing party requests documents that plainly are protected by a privilege, a lawyer will routinely assert the privilege, on principle, even though there is nothing hurtful to his case in those documents. On the other hand, a lawyer will not assert a lousy claim of privilege unless he badly wants to keep the documents in question out of the opponent’s hands because of their damaging nature. If I am correct that the administration’s assertion of executive privilege is baseless, it is reasonable to infer that the documents, if made public, would be highly damaging to President Obama, Attorney General Holder, or other senior administration officials. Now, as to Holder’s letter:

First: in the first paragraph of his letter to the president, Holder describes Fast and Furious as a program that was intended “to stem the illegal flow of firearms from the United States to drug cartels in Mexico.” This rank dishonesty suggests that Holder’s letter has primarily a political intent. In fact, the purpose of the Fast and Furious program was to facilitate and even finance the flow of weapons to the Mexican cartels. Why the administration wanted to do this remains a mystery; a mystery that might be cleared up if the subpoenaed documents are produced.

Second: the House committee has narrowed its subpoena to an extraordinary degree. The public may not be aware that what we are talking about here is not some vast universe of documents relating to Fast and Furious, but rather, as Holder acknowledges, a tiny subset: “The Committee has made clear that its contempt resolution will be limited to internal Department ‘documents from after February 4, 2011, related to the Department’s response to Congress.'” February 4 was the date of DOJ’s letter which falsely represented to Congress that Fast and Furious did not involve deliberately allowing guns to make their way across the border to the cartels. DOJ withdrew that letter on December 2, 2011, ten months later. So Issa is trying to obtain only DOJ communications relating to the false letter, and the process by which DOJ concluded that the letter was indefensible, and decided to retract it. This represents an extraordinary concession on Issa’s part. I cannot imagine that, in Issa’s position, I would have let the administration off so easily.

Third: Cole’s letter makes much of the fact that DOJ has provided Issa’s committee with “over 7,600 pages of documents,” as though that were a large number. In fact, that is a minuscule number of documents. In civil cases of the sort that I typically handle, it is common for the parties to produce millions of pages of documents. 7,600 pages can represent only the tip of the iceberg compared to the total amount of information on the Fast and Furious program. What is happening here is that the Obama administration is stiffing Congress–so far, successfully–by simply refusing to provide relevant information on a scandal that resulted in the deaths of hundreds of people.

Fourth: the case that is most directly pertinent to Holder’s assertion of executive privilege is In re Sealed Case (Espy), 121 F.3d 729 (D.C. Circuit 1997), which, along with Judicial Watch v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2008), cites and relies upon Espy, contains the most up to date judicial exposition of the doctrine of executive privilege. Unbelievably, Holder’s letter never cites or mentions the Espy case. If a first-year associate wrote a memorandum for me in which he failed even to mention the most significant case, I would fire him. (The Espy Court noted that its holding as to how deep into the federal bureaucracy the presidential privilege may extend was in the context of a subpoena in a criminal proceeding, and a conflict between the executive and Congress might implicate different factors. That appropriate qualification in no way sheds any doubt on the Court’s exposition of the deliberative process privilege, as discussed below.)

Fifth: it is easy to understand why Eric Holder, functioning as a politician and not a lawyer, omitted any mention of the Espy case. That case lays out the legal framework under which Obama’s assertion of executive privilege will be judged. The D.C. Circuit Court of Appeals explained that the term “executive privilege” actually encompasses two distinct privileges:

“[E]xecutive privilege” is generally used to refer to a wide variety of evidentiary and substantive privileges that courts accord the executive branch. Consequently, we refer to the privileges asserted by the White House more specifically as the presidential communications privilege, or presidential privilege, and the deliberative process privilege. …

The most frequent form of executive privilege raised in the judicial arena is the deliberative process privilege; it allows the government to withhold documents and other materials that would reveal “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”

In the Fast and Furious case, the “presidential privilege” clearly does not apply. The administration has said that President Obama had nothing to do with any of the relevant events, and the president says that he learned of the Fast and Furious program “on the news.” And Holder’s letter makes it clear that it is the second type of executive privilege, the “deliberative process privilege,” on which the administration relies:

[The documents under subpoena] were created…in the course of the Department’s deliberative process concerning how to respond to congressional and related media inquiries into that operation. …

[T]he doctrine of executive privilege…encompasses Executive Branch deliberative communications. …

Presidents have repeatedly asserted executive privilege to protect confidential Executive Branch deliberative materials from congressional subpoena.

[At issue is] the confidentiality of Executive Branch deliberations….

But Holder’s letter completely fails to acknowledge what a weak reed the “deliberative process privilege” is in the circumstances of this case. In Espy, the court said:

The 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….

The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need. … For example, 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.'”

Emphasis added. Here, the committee’s subpoena is explicitly intended to explore issues of “government misconduct.” Thus, as Cole acknowledged in his letter, Issa wrote on June 13 that:

the Committee is now “focused on” “documents from after February 4, 2011, related to the Department’s response to Congress and whistleblower allegations” concerning Operation Fast and Furious, in order to “examine the Department’s mismanagement of its response to Operation Fast and Furious.” … The Committee has explained that it needs these post-February 4 documents, including “those relating to actions the Department took to silence or retaliate against Fast and Furious whistleblowers,” so that it can determine “what the Department knew about Fast and Furious, including when and how it discovered its February 4 letter was false, and the Department’s efforts to conceal that information from Congress and the public.”

QED. Under Espy and the cases cited therein, the “deliberative process privilege” does not apply.

Why is the Attorney General of the United States reduced to making transparently bad legal arguments in order to hide government records from public view? The question, really, answers itself.