Asserting executive privilege shows desperation in the Obama White House

From a lawyer’s point of view, it’s 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 you’re wondering why those two conclusions (either the White House is dumb as a collective post or guilty as sin), here’s 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 I’m advising people who are contemplating litigation, I always warn them that filing suit means giving up lots of their privacy. They’ll 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. I’ve 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 isn’t actually involved in the communication at issue — or, at least, wasn’t 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 “I’ve 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 Obama’s assertion of executive privilege in only three ways.

(1) Obama’s White House was either involved in Fast and Furious, which is bad;

(2) or it means that Obama’s White House doesn’t 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 Obama’s 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 Holder’s 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 don’t know about that. The media need a good summer show, a real stemwinder of a Constitutional Crisis so that people tune in, watch Sam Ervin all day and buy the tampons, anti depressant pils that may or may not make you want to commit suicide or give you an erection that lasts for 12 hours.

The impeachment of Barak Obama just may be the feel good hit of the summer! A blockbuster.

And just think, the EP redefinition which screws Obama was written up by. . . Wait for it. . .

Miss Hillary Rodham herself during the Richard Nixon inquisition in 1973-74.

Absolutely delicious.

Nothing to disagree with you on the substance, but I object to

I’ll bet they won’t be reporting the ranking of the nation’s press anytime soon. It’s dead last.

the usage of “the press” in that context. Freedom of the press is a right of the people, not a privilege of a nobility or a priesthood.
Accordingly it is presumptuous of journalists to call themselves “the press.” Freedom of the press is a right which pertains to you whether you own a press yet or not.
In fact, since you have a computer with internet access (and probably also a printer, for that matter) you do have “a press” in the sense that you have spent money for technological means to transmit your opinions to a wide audience. The Constitution explicitly promotes technological progress

Article 1 Section 8. The Congress shall have power . . . To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries . . .

so the contingency of technological progress in transmitting opinions to a wide audience cannot be considered foreign to the Constitution, requiring or allowing government regulation. If in fact it is determined that government regulation of modern opinion-transmission technology is needed, the Constitution has provision to accommodate such a contingency:

Article V - Amendment The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

The conclusion is that wire service journalism, which is homogenizing influence on journalism, should not be allowed to arrogate to itself the term “the press” as if it were a title of nobility or a priesthood.

When I first started to read our post, I was afraid it was going to weave into a defense of the press.

In reality, you expanded the group that should be considered to be a part of the press. So yes it was a defense of the press, but in truth you and I are included. Anyone with a voice and a way to disburse it, even if only to provide their own editorial opinion, is a part of the press.

I appreciate you reinforcing this tenet.

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