MARK LEVIN: "Executive Privilege" And How the House Should Move Forward Legally

Mark Levin Show.com ^ | June 20, 2012 | Mark Levin

[Yosemitest]

   

On Wednesday's Mark Levin Show:
A House Congressional panel has voted to place Eric Holder in contempt of Congress regarding the Fast and Furious investigation.
Also, President Obama has cited executive privilege and refuses to hand over evidence or documents regarding
what he knew
or when he knew it.
Mark applauds the Republicans for standing up and delivering a blow to the tyranny that is going on, and urges them to keep at it.
Mark explains the history of executive privilege, as well as the power of Congress versus the power of the Executive.
It is clear that Eric Holder is at fault here.
However, if you watched the nightly news you'd see that they were more focused on the heat wave and the high temperatures,
rather than our Attorney General being held in contempt!

Executive Privilege & How the House Should Move Forward Legally
June 20, 2012

This is the right way to proceed


As the Supreme Court recognized in US v. Nixon, the Executive Branch has a legitimate interest in confidentiality of communications among high officials so that the President can have the benefit of candid advice.
However, as President Washington himself recognized,
that privilege does not protect the President or his underlings from embarrassment or public exposure for questionable actions.

As the Supreme Court has also recognized repeatedly,
the Congress, in the exercise of its constitutional powers, has the essential power to investigate the actions of the Executive Branch.

In this case, the exercise of Executive Privilege seems, in its timing and over-inclusiveness, to be nothing less than a political delaying tactic
to prevent exposure of wrongdoing and incompetence that resulted in the murder of a American law enforcement agent and injury and death of many others.
Further, a wholesale claim of privilege is facially improper:
the President should be held to the standard that anyone claiming privilege is held to:
identify each document in a log so that privilege can be disputed. (U.S. v. Nixon, 1974)


Because among the categories of documents sought are all those relating to the recantation by Holder of testimony before Congress,
the demand goes to the core of the Congressional power under Article I.
In this respect, this is not a general or oversight inquiry but a determination of
why the Attorney General of the United States testified falsely before Congress
about his own knowledge of a federal program.
Presumptively, none of this category of documents is protected by Executive Privilege for wrongdoing per se is not protected by the privilege.

The right way to proceed is
to hold Holder in contempt by resolution of the House
and seek authorization from the House for the Committee, by its Chairman, to proceed by civil action
to compel production of the documents.
(Holder will not enforce a holding of contempt against himself --
and by the way, he should have authorized, say, the assistant attorney general for legal counsel, to handle the contempt matter once the House voted
as at that point he is representing his own interests and not those of the nation generally).
Chairman Issa should file suit in federal court in DC and seek expedited action.
There is no need for Senate action.
The use of this procedure has been acknowledged by the Congressional Research Service in a 2007 study.
Further, a privilege log should be sought by Issa and ordered produced immediately by the court,
in camera inspection done promptly by the judge, and a final order entered compelling production of all documents for which no legitimate reason justifies Executive Privilege.

Yes, some documents may be covered by EP, but the blanket attachment of that label
flouts the law and the Constitution,
and harms the legitimate assertion of EP by Presidents of either party in the future.
The Constitution is far too important to be subject to the caprice of this President and an AG who, on its face, wants to be free from scrutiny
about why he testified falsely before a Committee of Congress.

Executive Privilege is a very important implied executive power, used in various forms since the presidency of George Washington.
Therefore, it's misuse and abuse, to cover-up wrongdoing, conceal embarrassing information, or advance a political agenda,
diminishes the ability of future presidents to assert it legitimately.

Because among the categories of documents sought are all those relating to the recantation by Holder of testimony before Congress, Because among the categories of documents sought are all those relating to the recantation by Holder of testimony before Congress, Because among the categories of documents sought are all those relating to the recantation by Holder of testimony before Congress, Because among the categories of documents sought are all those relating to the recantation by Holder of testimony before Congress,

[Yosemitest]

More from "www.realclearpolitics.com".

Mark Levin further discusses a note he wrote on executive privilege and how the House Republicans should proceed.
Partial transcript below (starts at 14:00).

House Republicans, don't screw this up.
Process means everything right now.
Your House resolution, now that the committee has held Holder in contempt --
your House resolution holding Holder in contempt needs to include specific authorization to grant the chairman, that is Issa,
the authority to retain private counsel to use House general counsel to enforce the contempt.
That is, to enforce the subpoenas and get the documents in order to get this matter in front of a federal district judge
and begin the process of litigating this on an expedited basis and demand a privilege log.

It's about 1,300 pages that this committee wants and the court will understand what a privilege log is
since most courts in the District of Columbia have dealt with privilege logs forever.
And most courts have dealt with them, regardless where they're located.

A president through his Attorney General -- and let us be very, very clear about this --
it is the president, not the Attorney General, whose asserting executive privilege.
A few facts out there because everybody with a law degree is running on TV and saying stupid stuff.
Only the president of the United States has the power to assert executive privilege for what's going on in his administration.
No one else can effectively or legitimately, let alone Constitutionally, assert it. That's number one.
So it's not Holder asserting anything, it's Obama.
Finally the mask comes off.

Number two, I've heard it said incorrectly that
executive privilege can only be asserted
if the president himself has information or communications that he's trying to protect.
That's so ridiculous.
How do you know Mark?
Because I've read the cases, because I've participated in these cases.
The president can assert a privilege that protects
a general on the battle field,
a CIA agent
and anybody who works for him
and any information that's in the executive branch,
he can assert it whether it is legitimate or illegitimate.
But it doesn't actually have to have his fingerprints on them.
So ignore people who talk like that, or you'll be confused.

---

Thanks to Mark Levin and to Ian Schwartz for giving us this information.

Here's some more information and source links from Mark Levin's Show.

THIS IS FROM:

Washington Times
Obama asserts executive privilege over ‘Fast and Furious’ documents

Facebook.com
Executive Privilege and how the House should move forward legally by Mark R. Levin

The Hill
House panel votes 23-17 to place Holder in contempt of Congress

Reuters
Obama campaign requests outside Republican group disclose donors

Volokh Conspiracy
Is President Obama’s assertion of executive privilege valid?

You Tube
FLASHBACK 2007: Obama Attacked Trying "To Hide Behind Executive Privilege"

Real Clear Politics
Obama In 2007: Executive Privilege Is "Subject To Abuse"

Washington Examiner
Obama 2005: 'The President is not the Attorney General’s client; the people are'

Daily Caller
Pelosi rips Holder contempt charges: ‘I could have arrested Karl Rove on any given day’

NY Times
New Book Raises Questions About Obama’s Memoir

Human Events
Senate kills effort to block EPA regulations on coal-powered plants

Real Clear Politics
Biden Says He's Not Blue Collar: "No One In My Family Worked In A Factory"

[DeaconRed]

"House Republicans, don't screw this up."

Don't hold your breath.
This bunch of RINOS could screw up most anything.
Yes I want something to come from this.
I am a realist. I know NOTHING WILL COME FROM THIS - - - - NOTHING! ! ! !

[Yosemitest]

I agree. We've got an awful lot of linguine-spined Republicans in the House, and we all need to keep a close eye on "WHO VOTES TO MOVE FORWARD WITH THIS" and who chickens out.

"COMPROMISE" is a dirty word!!!

[bcsco]

This is a ping list promoting Immigration Enforcement and Congressional Reform.
If you wish to be added or removed from this ping list, please contact me.

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[rockinqsranch]

Seems to me declaring Executive Privilege under these circumstances is setting a precedence for muddying the waters.

That would be a typical ploy of the Left to open for, and to argue that which is historically understood as accepted rule, or law.

This is a terrible direction they have taken with regard to the future I would think, and the reaction by the GOP should be overwhelmingly in favor of the future.

[Yosemitest]

The House should hold televised hearings on this every day until Obama is IMPEACHED!

[JohnnyP]

All the mainstream networks would televise it. (/s)

[rockinqsranch]

Indeed. Under the category of expose the culprits for what they are trying to accomplish.

What are they trying to accomplish? I’d say that if they win the argument, and muddy the waters successfully that Obama will attempt to use Executive Privilege as established by this action for virtually every illegal action he has committed since January 2009.

[Yosemitest]

They should keep shoving bloody photos in their faces of the people killed because of their anti-2nd Amendment tactics, causes by their lies, and their maliced strategy.
Show everyone who trusted these Fabian Fascists, including the ILLEGAL IMMIGRANT IN CHIEF, that they're responsible for these deaths!
Rub their noses in it!

[harpu]

later for reference...

[gortklattu]

Lost of interesting links on this page

[gortklattu]

lots of interesting links on this page

[Carriage Hill]

_... (bookmark for later this morning)

[samtheman]

Holder will get his revenge in a 2nd Obama administration, especially if a seat opens up on the Supreme Court.

[Yosemitest]

I know it's wishing for too much,
but maybe if Romney gets a spine (NOT) and appoints some real federal Judges and federal Prosecutors,
then Holder will serve several of those 4 years in prison,
where he and all the rest of the Obama appointees belong, along with the ILLEGAL IMMIGRANT IN CHIEF.

[samtheman]

If Romney wins the election, Obama will pardon Holder on their way out. Holder will never see a day in jail for all the murders he’s responsible for.

[netmilsmom]

bttt

[sickoflibs]

After Holder refuses to procecute himself Levin recommends taking civil action and sueing Holder in a federal court.

This is how the Pelosi House Judiciary (Conyers) proceeded in their indictments of GWB WH staff like Karl Rove when the AG would not proceed, and the court upheld the executive privilege for the Bush WH. The cases are different (executive privilege for justice dept?? ) but look the same to the average viewer.

Question 1 : How long will this take?
Question 2 : How will this affect Obama's re-election chances?

Over in happy-Hannity world Holder will simply resign. "Let not your heart be troubled " LOL

[Dinah Lord]

Marked for later

[Steely Tom]

Don't hold your breath.
This bunch of RINOS could screw up most anything.

I agree but in all fairness...

The Democrats screw things up all the time too. The difference is that MSM's Willing Accomplices ignore, cover up, and rationalize their screw-ups, while making the GOP's screw-ups headline news.

PS: cool screen name.