Thursday, June 21, 2012
- Annuit Coeptis
I see two different shapes, as I conceptualize the forms for executive privilege that are all over the news. The first shape is a block of Swiss cheese and the second is pyramid floating in the air.
The deliberative process privilege allows the government to withhold information such as advisory opinions, recommendations and deliberations that form the basis for a governmental decisions or policy, so that fresh ideas from public servants will not be limited by fear of later public scrutiny. It does not extend to purely factual material. The withheld material must be "predecisional," meaning generated before the agency using the material adopted the policy or made a decision.
The deliberative process privilege is “conditional,” meaning that it can be overcome by a showing of need, which the court will examine on a case by case basis by considering “the relevance of the evidence,” “the availability of other evidence,” “the seriousness of the litigation,” “the role of the government,” and the “possibility of future timidity by government employees.” The Court routinely pierces the privilege where the information may shed light on government misconduct, because the purpose in shielding internal government deliberations to promote a public's interest in honest, effective government does not exist.
A block Swiss cheese is the right shape for deliberative process privilege. It is full of holes, melts when it gets hot and you can have it for lunch.
The presidential communications privilege provides a President and those who assist him the freedom to explore alternatives in shaping policies and making decisions in a way that may be unwilling, except to express themselves privately. This privilege is conditional as well, as former President Nixon learned the hard way. It may be pierced in a lowly civil action that alleges conspiracy among high officers of government to deny a class of citizens their constitutional rights AND (a big "and") where there has been sufficient evidentiary substantiation to avoid the inference that the demand reflects mere harassment. Where a litigant has carried this burden, the Court will conduct an in camera review, Judge's eyes only, and consider any argument by the President that the disclosure should be narrowed, before ordering the disclosure. Thus, the presidential communications privilege crumbles when used as a shield against credible claims of misconduct.
The presidential comunications privilege covers factual information, to serve its underlying interest to ensure that presidential advisers provide knowledgeable and candid advice, which would be chilled, if public scrutiny included disclosing "what was known when." It likewise extends downward from the President to his advisors and to those from whom they “solicited and received” information, because advisers must rely on staff to investigate an issue, and formulate the advice to be given to the President. It applies, however, only to information that served to advise the President, and not, I would presume, to communications between Clinton staffers that pried "W" keys off keyboards just before they left the White House. So much like the translation of annuit coeptis on the Great Seal, presidential privilege applies where, “He favors our undertakings.”
The presidential communications privilege is like a stone pyramid floating in the air. It is tough to crack and you can’t figure out what’s keeping it up there.
Here, as far as I can tell, the Obama Administration decided to invoke decisional process privilege. As far as timing, the full house will need to vote whether to find Attorney General Holder in contempt. Next, the House will need to refer the case to the U.S. attorney for a criminal prosecution for contempt of Congress. The U.S. Attorney will likely decline the case because the administration invoked privilege. The House may then file a civil suit to enforce the subpoena.
The District Court will then begin its ad hoc process of slicing the Swiss cheese, to see where the holes fall and what information gets through. This will take time. As I see it, more time than before next November. So Fast and Furious will amble off to the Courts, where the Justice Department can litigate, and delay and pour as much cold water on this as they can.