Asserting executive privilege shows desperation in the Obama White House



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.

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  • Randall Woodman

    An article by the heritage foundation explains that using executive privilege to shield wrongdoing is an illegitimate use of that power.   Either way, I agree that the WH took a bad situation and made it worse.

  • Ymarsakar

    Evil isn’t evil because they’re playing around. They’re not playing around. But most Americans today are ignorant, rolling around in the dirt, and thinking play will be forever.

  • Gringo

    NObama is simply following Presidential precedent. After all, President Nixon was SO successful in invoking executive privilege! :)
    “Executive privilege helped me get unlimited time at the golf course nearest San Clemente.”   Richard Nixon :)
    Let us hope that his invoking  executive privilege will enable Barack Obama to be able to spend 8 hours a day on the golf course come January 20,2013.


    He’s certainly testing the waters and they’re all-in come hell or high water. I really feel badly for the families of the murdered border agents and for the agents that are still active and on the job. 

    Anybody else wondering …. what happens “if” SCOTUS gives Obamacare a thumbs down what this administration is capable of? 

  • gpc31

    Events are exploding at an exponential pace.  Obama’s responses are rote and linear — way behind the curve.
    Now Fast and Furious becomes a public scandal on top of:
    A campaign without traction.
    Personal ridicule directed at Obama (don’t underestimate this factor).
    The unspinnable economy.
    The Euro crisis.
    National security leaks.
    Russia making mischief.
    Syrian problems.
    Iranian nukes.
    The possible rejection of ObamaCare.
    There’s blood in the water.  This is a self-reinforcing process:  The worse the economy, the worse the scandals, the great the danger of foreign crises.  Things are going to get very unpredictable very fast.
    Holder, and this administration, are not going down without a fight.  On the other hand, watch carefully to see which Democrats or msm figures (but I repeat myself) defect.

  • jj

    I’m not sure what it shows, but I wouldn’t bet the ranch that “desperation” is it.  We all know democrats are a lower life form, and that the democrat party is essentially a criminal enterprise.  You know that there is not a member of that party who will fail to back him to the hilt.  They will lie for him, cheat for him, ignore the law for him, assist him in breaking the law, and show absolutely no regard for the Constitution.  Being upright and honorable is no part of their makeup.  So what does he have to lose?  The absolute worst that can happen to him will be that the whole thing stalls and goes nowhere, disappearing into the vast limbo of legal snarling and wrangling – and nothing will be decided in advance of November; no one will be punished or removed, including the execrable Holder; and without the media to keep everyone focused on it the matter will be moved to the most far back and out of sight burner there is – and the American people will go to the beach.
    This is what Obama expects.  He’s shifted the argument from dealing with Holder to now requiring months of litigation over the merits of asserting privilege – an argument which will take place in back rooms: a pile of legal horse pucky to which no one will pay attention.  Even if you wanted to pay attention to it you couldn’t do it, because it’s in back rooms below the radar.  So what he’s accomplished is to take the heat off, and buy himself months of lawyerly BS, during which nothing will happen and he’ll continue to campaign.
    He knows the people – and party – around him.  Richard Nixon was pursued by honorable people: republicans.  It was Howard Baker – a republican – who asked the famous question, “what did he know, and when did he know it?”  Being honorable people, interested in the truth and the rule of law, they didn’t defend Nixon, or cover for him.  When Clinton, charged with (very close to) exactly what Nixon was accused of – covering up, suborning perjury, etc. “lying to the American people” would have been charge #2 in the bill of impeachment being drawn up against Nixon; it was charge #2 in the actual bill drawn up against Clinton – what did the democrats do?  They defended and covered for him.  As you may recall, Little Dick Gephardt led the congressional democrats in walking out of congress.  Like the recent Wisconsin legislature democrats, they walked out.  Quite literally – though I don’t think they went to Illinois, another criminal enterprise.
    He knows exactly what he’s doing.  He knows his target audience.  Under the twin towers of camel dung, Reid and Pelosi, what does he have to worry about?  They’ll obstruct, they’ll make things that should take two days require months – which the lawyers would do anyway; they’ll behave in the usual beneath contempt fashion, and eventually the whole thing will fade away in frustration, tangled up in the side issue to which he’s – quite cleverly – sidetracked it: arguing over executive privilege.
    I don’t expect a thing to come of this.  The American people, unless they’re daily reminded and flogged by the media to take an interest and demand answers – won’t.  You think the media’s going to pursue the story and drive the people to demand answers?  If so, I have a couple of bridges to sell you.

  • MacG

    Isn’t that EO pen dry yet?  Hope he”s using soy based ink at least…

  • Libby

    I think Obama’s problem with Fast & Furious is that it’s not a typical DC scandal, such as one involving money or special favors. This involves actions that resulted in hundreds of deaths, including Brian Terry and Jamie Zapata. It also involves in engaging and enabling criminal activities in a foreign country (and Mexican officials have already expressed interest in trying US officials for this)I think Obama has to do everything he can to prevent the public from knowing he has blood on his hands.

  • Charles Martel

    You know, the Wicked Witch of the West had a great run, with no viable opponents in sight, until a spunky teenybopper accidentally doused her: “Oh, what a world! What a world! Who would have thought a good little girl like you could destroy my beautiful wickedness?”
    Call it the “Dorothy Factor,” but I think there’s still a decent Democrat or two out there who will be willing to throw some water on this administration’s beautiful wickedness. Not all Dems are evil, though the party itself has turned into a racist, elitist cesspool.

  • Earl

    I think jj has it right, EXCEPT……the GOP needs to ask the court (and they’d better choose the court and the judge carefully) to expedite a ruling, pointing out that the interest of the Admin is in stalling.
    An honorable judge will do that, and the Admin will be faced with defying BOTH the other branches of government or doing the right thing within a week or so.
    Let’s hide and watch.


    I stumbled upon this article today (November 2008) and it appears timely enough.
    Here’s the lede:
    When a Congressional committee subpoenaed Harry Truman in 1953, nearly a year after he left office, he made a startling claim: Even though he was no longer president, the Constitution still empowered him to block subpoenas.
    “If the doctrine of separation of powers and the independence of the presidency is to have any validity at all, it must be equally applicable to a president after his term of office has expired,”Truman wrote to the committee.
    Here’s my favorite quote:
    “I intend to ensure that our outstanding subpoenas and document requests relating to the U.S. attorneys matter are enforced,” said Representative John Conyers, Jr., Democrat of Michigan and chairman of the House Judiciary Committee. “I am hopeful that progress can be made with the coming of the new administration.”
    Here’s the bottom line:
    The Supreme Court has never made clear how far a former president may go in trying to block Congressional demands for documents and testimony — or what happens if a president disagrees with a predecessor about making information public.
    Here’s the link and stink:
    Bush, Out of Office, Could Oppose Inquiries –

  • gpc31

    jj, you make excellent points.  You could very well be right.  Obama, aided and abetted by a complicit media, might be able to get away with a strategy of legal pettifoggery until after the election.  I wouldn’t put anything past the Democrats.
    But I’m counting on the pressure of events, not their sense of honor, to force the Democrats’ hand.  When does the party’s collective survival instinct kick in?  When do the (c)rats jump? 
    Maybe they feel it’s too late to abandon ship.  Maybe they can’t, because if Obama goes, they surely lose the black vote and the party goes under for good. 

  • Ymarsakar

    Obama doesn’t have Nixon’s conscience. If people are waiting on a President with a conscious resigning, they’d better not hold their breath. The media was not only Nixon’s enemy, but the American Constitution’s enemy as well.

  • jj

    Pelosi put forward the talking points from Mars today: this is purely political; the republicans were out to get Holder because he was going to make sure it’s an honest election in November and not let the republicans cheat.  The attorney general is the person responsible for making sure there’s no voter suppression, so it’s not a coincidence at all that this has been done.
    Now Pelosi’s cranium is jammed so far up her fundament she hasn’t seen daylight, except through her navel, since the instant of her birth – but there’s the official line.  In the recorded history of the republic I am unaware of an election republicans have stolen, whereas we all know several the democrat party’s stolen – but thirty million people will believe every word she said.  The house will vote next week on the committee’s decision to hold Holder in contempt – and it will get not one single democrat vote.  Not one.  The fact that Holder has lied, been caught in lies, had to withdraw and restate – it all means nothing.  Not one democrat will vote to hold him in contempt.
    Finding him in contempt of congress (just aside from all the connotations of that.  I mean, c’mon – who doesn’t have contempt for congress?) will mean nothing.  It’s a waste of breath.  I won’t even bother having hopes, let alone getting them up.

  • Ymarsakar

    The only solution to political corruption is the execution scaffold. People 4 years ago probably thought that was crazy and extreme. 2 years ago people thought that was out there too. But as time goes on, people are having doubts and starting to think… maybe… maybe it might be necessary.

  • Mike Devx

    What you have to understand is how deeply Congressional Democrats hold THEMSELVES in contempt.

    One of the primary duties of a mother and father is to clothe and feed their children.  What would you say to your neighbor parents if they never washed their kids’ clothes and never fed them?  Little Sally and Jimmy have been wearing the same socks, underwear, jeans and t-shirts for two weeks, they’re grimy and they stink.  They show up at your door starving and you feed them and they’re very grateful.  What a worthless pair their parents are, you would think, and you would be right.  They are almost beneath even contempt.

    Similarly, one of the primary duties of the Senate is to pass a budget.  It’s simply what they DO,  It’s simply what they’re supposed to do… like washing your kids’ clothes and feeding them.  It’s a no-brainer.  It used to be if you didn’t fulfill your basic responsibilities, you would be ashamed.  But just as those parents would have no shame, these members of Congress also have no shame.

    I wonder what it must feel like, to be shameless, and to know you are beneath contempt.  To be whores in every possible sense of the word, shamelessly selling out every last ounce of principle and honor in pursuit of some political game, some desperate edge in “the game”.

    The danger is, we are coming to expect so little from our Congress-Critters, and even less from our President, that I don’t know how our national institutions survive.  They are becoming so LITTLE in standing and grandeur; they are throwing away gravitas and honor.  We expect better from drunken fratboys, and we generally get it.  Pelosi says things that are blatantly outrageous – “We have to pass this bill so we can find out what is in it” is just the tip of HER iceberg – and we just put up with it.  We are beyond outrage.  In a sense we are all giving up.


  • Ymarsakar

    It’s not so much that people are giving up, as they lack the spine, will, to do what it takes. And what it takes is being ruthless at or beyond the Left’s own ruthlessness.