|There aren't a lot of pictures on executive privilege. Here is a baby bunny instead.|
Most Americans, probably, think that Executive Privilege means that conversations between the President and his staff are, well, privileged. Meaning that like a doctor/patient, attorney/client, priest/confessor, psychiatrist/psychopath relationship, the President nor the staff members involved cannot be compelled to reveal what was discussed.
Actually, that isn’t really that case. Anything discussed in those previous examples is legally confidential (for the most part—some of those confidential relationships are more honored out of tradition than strictly legal).
The presidential Executive Privilege is, well, more like a reporter and his source. You don’t necessarily want to reveal your sources, but by God you can be made to or face the consequences.
There are two situations in which Executive Privilege can be invoked.
First, executive privilege may be declared under Presidential Communications. This one is pretty easy to understand: the President calls you up and says “Jerry,” (even if your name is not Jerry) “Give me your honest opinion of Judge Holden Euceless.” Your answer is now privileged information, and cannot be revealed to the public since you were asked for a candid opinion.
The Second type is Deliberative Process, in which early or initial communications between people and the President (deliberations) are not subject to scrutiny for two reasons. The first is that sometimes early spitball ideas are stupid or dangerous, but are offered for the part of playing Devil’s Advocate with the President. The second reason is what the Czar might call the Elephant in the Room—no one wants to point out the obvious unless they know they won’t be damned for it.
An example of Deliberative Process is a hostile threat that took American hostages in a children’s hospital. The President asks for options. One guy suggests paying the hostages, which of course won’t work. Another suggests bombing the whole hospital and pinning the tragedy on another country. A third recommends a surgical strike, and so on. Without Deliberative Process, the press could run with the story that Assistant Undersecretary Whorlen Dervish recommended killing children and blaming an ally. Think he’ll find work soon? No. But it was a crazy brainstorm idea that no one took seriously, even Mr. Dervish.
Likewise, Undersecretary Assistant Knox Overstuff recommended a bribe! Can you imagine? Does that not undermine American policy of not negotiating with terrorists? Well, yeah, but it might have worked even though no one likes to be the one to suggest it. So Overstuff just killed his political future by suggesting the old elephant in the room.
The idea here is that there is a lot of high-level stuff discussed with the President that should remain forgotten because it was never seriously entertained or because the President asked for out-of-the-box ideas.
Which form did President Obama invoke for Attorney General Eric Holder? At the request of the AG, he declared deliberative process. This strikes a few pundits as odd, because generally the first form is much harder to unravel; however, Presidential Communications implies a 100% solid link between the President and the subject matter.
By invoking Deliberative Process, AG Holder wants executive privilege extended to deliberations between Department of Justice staff. This is a new idea, and quite a bit of a stretch: Executive Privilege does not extend to the DOJ staff unless the President was being briefed on an eventual decision, the result of which means the public would be happier not knowing.
This, too, then links Fast and Furious to the President himself; otherwise, Deliberate Process cannot apply.
Can this be overcome? Well, yes: executive privilege does not apply for matters involving illegal (or potentially illegal) activities. Unless national security is risked, in which case the Supreme Court may be called in to evaluate.
Nor will executive privilege necessarily protect individuals whose positions were created by or approved by Congress. In other words, executive privilege will extend to Valerie Jarrett because she is ultimately appointed by the President and serves as long as he wants; but the position of Attorney General was created by Congress in 1789 and Eric Holder was confirmed by Congress.
As a result, he is fully subject to impeachment by the House and trial by the Senate.
So while there is question as to whether executive privilege can legally extend to positions below the AG without the involvement of the President, there is no question that his executive privilege does not exempt him from revealing what he knows.
This will be most interesting. And, if history has anything to say, we will likely see another Democratic operative hoist by a petard they didn’t fully understand. Best of luck, AG Holder!