From a lawyer’s point of view, it’s hard to imagine anything more stupid than for the Obama White House to assert executive privilege as to the Fast and Furious documents. The subpoenaed documents must have some pretty damning information for the White House to make this move.
More than that, by having asserted the privilege, the lawyer-led White House showed either a profound misunderstanding of the nature of privilege or is conceding that the Fast and Furious scandal — which saw the Justice Department pour thousands of guns into criminal hands in Mexico, resulting in the murders of two American law enforcement officers and untold numbers of Mexican and American civilians — goes all the way up to the White House.
If you’re wondering why those two conclusions (either the White House is dumb as a collective post or guilty as sin), here’s a little information about legal “privileges.” Once a case is in the legal system, the law imposes upon each party a duty to reveal information, provided that the opposing party properly requests that information. When I’m advising people who are contemplating litigation, I always warn them that filing suit means giving up lots of their privacy. They’ll be required to turn over vast numbers of documents and to answer intrusive questions, provided that the other side can credibly show that the information sought is reasonably likely to lead to the discovery of admissible evidence.
A typical (and appropriate) discovery request might read “Please produce all communications between you and any realtors other than the defendant regarding the sale of your home at 123 Any Road in Nowhere Town.” Those “communications” would cover writings, emails, phone messages, etc. I’ve worked on cases that have involved the production of hundreds of thousands of pages, answers to hundreds of questions, and innumerable live depositions.
There are relationships, however, that the law considers so important it insulates from discovery or testimony any original communications between the parties to those relationships. The law will not involve itself in trying to ferret out communications between a priest and a penitent, nor will it interfere with the bond between husband and wife. Likewise, recognizing that an attorney cannot give counsel to a client without full and free communications between the two, the law protects any direct communications between an attorney and his client.
In my years as an attorney, I would have to say that “attorney client privilege” is the privilege I see asserted with the greatest frequency. What I also see is lawyers who assert it in the hope that no one notices that a lawyer isn’t actually involved in the communication at issue — or, at least, wasn’t involved initially.
The deal is that you cannot shield otherwise unprivileged information by lodging it with your attorney. For example, if your corporate client has a memo on file that says “I’ve got a great idea for defrauding our competitor,” your client cannot prevent the other side from discovering that document by mailing it to you, the lawyer, with a cover letter saying, “You need to know about this document.” However, to the extent your client writes you a long letter explaining everything he knows about the case, good and bad, that letter to you is privileged. In the same way, your response explaining the legal consequences of the events described in the letter is also privileged.
More simply put: in order to assert any legal privilege, both of the parties covered under the privilege must have participated in the communication and must have exchanged original information that does not exist independent of the privilege.
Because of the way privilege operates, we can understand Obama’s assertion of executive privilege in only three ways. (1) Obama’s White House was either involved in Fast and Furious, which is bad; (2) or it means that Obama’s White House doesn’t understand the nature of a privilege, which is embarrassing, especially with a lawyer at the helm; (3) or it means that the documents Holder is hiding are so dreadful that Obama’s White House would rather risk looking criminal or stupid than take the risk of allowing Congress and the public to see those documents.
No matter how you look at it, by inserting itself into this struggle between Holder’s Justice Department, on the one hand, and Congress, on the other hand, the White House made an already bad situation look much, much worse.