Skip to comments.Asserting executive privilege shows desperation in the Obama White House
Posted on 06/20/2012 1:27:30 PM PDT by servo1969
From a lawyers point of view, its 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 youre wondering why those two conclusions (either the White House is dumb as a collective post or guilty as sin), heres 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 Im advising people who are contemplating litigation, I always warn them that filing suit means giving up lots of their privacy. Theyll 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. Ive 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 isnt actually involved in the communication at issue or, at least, wasnt 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 Ive 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 Obamas assertion of executive privilege in only three ways.
(1) Obamas White House was either involved in Fast and Furious, which is bad;
(2) or it means that Obamas White House doesnt 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 Obamas 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 Holders Justice Department, on the one hand, and Congress, on the other hand, the White House made an already bad situation look much, much worse.
I am sure Obama is working on the pardon for Holder he will issue on Nov 7th.
(4) All of the above.
Committee just voted to hold Holder in contempt. What is more important is that all the Democrats voted no. That supports my theory that Democrats are communists and have no respect for the law.
This now will go to the full House where you can expect that it will be by party line and the communists Democrats will all vote no. Then it will go to the Senate where all the likewise Democrats will vote no and this will end the rule of law. ALL DEMOCRATS ARE COMMUNISTS AND THEY WILL AND HAVE DESTROYED THE RULE OF LAW. I STRESS AGAIN. DEMOCRATS ARE COMMUNISTS.
Has the WH given grounds for invoking EP?
Also very important is the fact that one cannot claim “partial” privilege. Holder and the DOJ have already provided info about the February 4th, Ron Weich letter, for example. It is not legally permissible to now claim privilege on the remainder of that documentation. When part of it is out, the rest becomes fair game!!! One cannot testify and then claim 5th Amendment protection for the REST of what he was going to testify to!!!!
And that is a slim reed.
This is all about gun running right?
Well at one time it was. Now it’s also about dead U. S. Law Enforcement officers, dead Mexican nationals, and more than likely other dead U. S. Citizens.
If this were a Republican administration, at this point this would all be about...
1. the president not respecting law enforcement
2. the president betraying the INS (who cares what the flavor of the day name now is)
3. the president being a racist, for not caring about dead Mexican nationals
The media loves to play up where we rank in the world these days, because in some cases it makes the U. S. look bad.
I’ll bet they won’t be reporting the ranking of the nation’s press anytime soon. It’s dead last.
We even get some truth out of Egypt, Syria and Iran these days.
When it comes to the U. S. and the Leftists, we sure don’t get any out of our press.
I wish I knew if it was online as a video, but judge Napolitano, this morning on Fox News, gave a more direct explanation of Executive Privilege as it pertains to the WH. There are 4 areas where the SC has ruled the president can claim EP. The two that could be pertinent are 1) National security, and 2) Presidential confidentiality. The president/Holder could be claiming that dealings under F&F could fall under national security. OTHO, the 2nd category directly involves the president in the scope of the discussions.
I don’t believe for a minute Obama wasn’t involved with F&F from the get go. What I’m very curious about, is the fact the information about the claim of executive privilege came from Holder and, as yet, there’s no direct correspondence from the WH.
I could be wrong, but from what I have read, it does not go to the Senate. Technically, Holder is being charged with being in contempt of the House, so as long as the House votes in the affirmative, the contempt charge is referred to the US Attorney for prosecution.
Of course, anyone who could prosecute the case works for Holder, so nothing will happen.
FYI.... Some legal thoughts of what has happened and is about to happen with F&F.
My lights keep dimming.
Must be all the paper shredders cranking up in DC.
My understanding is that the House can issue a contempt citation without the involvement of the Senate.
FYI.... Some legal thoughts of what has happened and is about to happen with F&F.
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