- Lanny Breuer is Deep in the Cheese

I am finally at the end of this thread about executive privilege and Fast and Furious. Congratulations to anybody who has stayed with it! So this is the old, new borrowed and blue moment, where I will try to tie it all together and tell you where I think it will go.

The big dog in the Nixon executive privilege case was Archibald “Bowties are Cool” Cox. He digested the testimony of White House aides and others who appeared before Congress, and put together a devastating response to the Nixon White House claim of executive privilege. His methods set the legal standard for piercing the privilege.

If Nixon gave us a textbook example of how not to assert executive privilege, Bill Clinton showed us the right way to do it. In his Administration, Mike Espy came under investigation in 1994 for claims that he accepted gifts while he did the work of the U.S. Department of Agriculture. On September 9, 1994 Congress appointed an Independent Counsel to investigate. Espy resigned On October 3, 1994.

On October 11, 1994, long before Congress could take any testimony, the White House publicly released a report prepared by the White House Counsel that answered two Presidents questions: 1) Whether the President should direct any further action regarding Secretary Espy's conduct, and; 2) What actions should be taken to ensure that similar incidents are avoided by other Members of the Cabinet.” This was a master stroke in fitting all White House knowledge about Espy’s conduct within both the deliberative and presidential communication executive privileges.

The Espy Independent Counsel followed the Archibald Cox model by in convening a Grand Jury that issued a subpoena for documents used by the White House Counsel to answer the President's questions. The White Hose asserted deliberative process and presidential communications privilege over 84 pages, cryptically described in a privilege log. The U.S. District Court found that the Special Prosecutor did not establish a great enough need to pierce the privileges the White House asserted.

In In re Sealed Case (Espy), 121 F.3d 729 (D.C. Circuit 1997) the D.C. Circuit wrote a textbook opinion about executive privilege in affirming the District Court in part, finding all of the documents withheld by the White House subject to the presidential communications privilege, especially in light that there was no ongoing investigation of any officials then serving in the White House.

I would not be surprised if Lanny Breuer had a hand somewhere in the Espy case. Without a doubt, he and his Deputies at the DOJ have looked to In re Sealed Case as a model for their attempt to cut off Congressional inquiry into Fast and Furious.   Like when the the Clinton White House saw an Independent Counsel in the offing, Lanny Breuer directed that the investigation begin, once the DOJ knew there was trouble as it issued its February 4, 2011 letter.  He put Jason Weinstein, the one who seemingly knows where the most bodies are buried, into a critical investigative role, making him a very long reach for a Congressional inquiry.

Fast and Furious, however, differs much from the simpler, and as history has shown, undignified case against Espy. Certainly, the roles of Breuer and Weinstein do not fall within the “floating pyramid” of presidential communications privilege. Instead, the Obama Administration seems likely to assert only evaluative process privilege, leaving Breuer “deep in the cheese.” Likewise, it seems that too many Fast and Furious worms have escaped the deliberative can, and it may be too big a job to get them all back in. 15 years has changed much about how information moves. These days it seems to swarm rather than inch along.

The most telling development, as I see it, is the rhetoric on the left has risen a few octaves, as the focus of Committe on Oversight and Government Reform seems to be less about what went wrong and more about whether somebody broke the law. Once Fast and Furious crosses into the official misconduct realm, the Espy model no longer works. So, as a worker bee in the information swarm, I have tried to show how the Lanny Breuer corner of this story seems a little worse than just not adding up.

When it comes time to tell it to the Judge, I think DOJ will be ordered to disclose far, far more than what they have provided so far. I just don’t think the parts DOJ really wants to hold onto will come out in time to influence the 2012 election. The wild card is whether more swarming information like wiretap packages from unidentified sources puts together a picture of malfeasance that may sink the invincible.