What is executive privilege?

As you no doubt know, today President Obama asserted executive privilege in connection with the production of documents in the possession of the Department of Justice which had been subpoenaed by Congress in connection with Congress’s Fast and Furious investigation.

Let’s begin, as they say, at the beginning.  On February 4, 2011, the Department of Justice sent a letter to Congress basically saying that the Department had no knowledge that operation Fast and Furious was allowing guns to “walk” into Mexico.  Months later, the Department of Justice advised Congress that the February 4 letter was false.

On the verge of being held in contempt of Congress for failing to turn over Department of Justice documents generated after the February 4 letter and before the retraction, yesterday, the Attorney General sent a letter to the President requesting that the President declare those documents to be protected from production on the grounds of “executive privilege”.  You can find the Attorney General’s letter here.

There are many “varities” of executive privilege.  It would seem that the basis for asserting executive privilege in this case, at least according to the Attorney General’s letter, is the “deliberative process” privilege.

Because  the documents were generated in the course of the deliberative process concerning the Department’s responses to congressional and related media inquiries into Fast and Furious the need to maintain their confidentiality is heightened.  [emphasis supplied] See page 3

So, what is the deliberative process privilege?

The answer is found, among other places, in the 1997 case of In Re Sealed Case,

the deliberative process privilege…protects the deliberations and decisionmaking process of executive officials generally. (See page 4)

But, this privilege is not an absolute privilege.  It is what is called a qualified privilege, meaning that it does not apply in all cases.

The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need…[f]or example, where there is reason to believe the documents sought may shed light on government misconduct, ‘the privilege is routinely denied,’ on the grounds that shielding internal government deliberations in this context does not serve ‘the public’s interest in honest, effective government.’ [emphasis supplied] see page 6

Is there reason to believe these documents “may shed light on government misconduct”?

You tell me.

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The Sound Off Sister was an Assistant United States Attorney for the Southern District of Florida, and special trial attorney for the Department of Justice, Criminal Division; a partner in the Florida law firm of Shutts & Bowen, and an adjunct professor at the University of Miami, School of Law. The Sound Off Sister offers frequent commentary concerning legislation making its way through Congress, including the health reform legislation passed in early 2010.


  1. Chetan on June 20, 2012 at 7:11 pm

    Sheila Jackson Lee said it was Bushes fault..so it must be true.? She never lies.?

  2. Gary J on June 20, 2012 at 7:17 pm

    OMG SOS hits the bulls eye once again. Oh no————–I said Bulls eye. DHS? is on the way folks I gotta go hide…………See ya

  3. Anybody but Obama on June 20, 2012 at 7:41 pm

    I was wondering what the process would be and I ran across this??


    I wonder if they cuff and stuff him

  4. stinkfoot on June 21, 2012 at 4:39 am

    The last time I recall the term “executive privilege” invoked was after Archibald Cox demanded that Richard Nixon release recordings of conversations he had in the White House when his administration was under investigation after the break in at the Watergate Hotel.? The repeated invocation of executive privilege was a part of the larger cover up which was what took down the presidency; and when the tapes were finally turned over there was an 18 minute erasure that was the equivalent of a smoking gun of obstruction that had congress moving to impeach which was what forced Nixon to resign.

    • stinkfoot on June 21, 2012 at 4:41 am

      This is criminal on the part of Obama.? “Fast and Furious” was likely a campaign intended to ensure American made weapons would be used in crimes against Americans in order to justify either a serious abridgment or outright repeal of the second amendment.? A campaign to disarm citizens itself is the tactic of a tyrant and in this case the campaign is outright criminal.? This president, his AG and other members of the administration need to face charges.
      This is a criminal regime.

  5. Marilyn on June 21, 2012 at 7:22 am

    Who thinks the shreders at Justice are running 24/7?? I do.

  6. JBS on June 21, 2012 at 9:29 am

    Criminal is too soft a word to describe the heinous, subversive nature of Obama and his corrupt, contemptible Regime. Never have so few taken so much from so many. Vitriol alone is insufficient to convey my utter disgust and contempt at Obama’s cover-up of his complicity in illegal actions.
    I fervently hope we are witnessing the last days of the Obama Regime.

  7. Murphy on June 21, 2012 at 12:19 pm

    Under Article III, Section 3, of the Constitution, any person who levies war against the United States or adheres to its enemies by giving them Aid and Comfort has committed treason within the meaning of the Constitution. The term aid and comfort refers to any act that manifests a betrayal of allegiance to the United States, such as furnishing enemies with arms, troops, transportation, shelter, or classified information. If a subversive act has any tendency to weaken the power of the United States to attack or resist its enemies, aid and comfort has been given.

  8. Dimsdale on June 21, 2012 at 12:49 pm

    Wouldn’t Holder just be better off pleading the Fifth Amendment?? I don’t think anyone doubts his guilt at this point.

    • stinkfoot on June 21, 2012 at 7:12 pm

      There’s plenty of “ammo” for Romney to use.

  9. RoBrDona on June 21, 2012 at 3:08 pm

    My understanding (and I can certainly be wrong) is that Holder, in order to qualify for executive privilege, had to be in very close, personal “advisory role” with Obama on the subject at hand. This, defacto means additional perjury as it states as fact that Obama knew about F&F,? something repeatedly denied. ?

    • stinkfoot on June 21, 2012 at 7:13 pm

      “People have got to know whether or not their president’s a crook”
      -Richard Milhouse Nixon

  10. PatRiot on June 21, 2012 at 9:06 pm

    This is deja vu.?
    Break all the rules then use them to protect yourself.??
    Kind of like the flag burners who would then claim their rights to free speech.

  11. JBS on June 23, 2012 at 7:33 am

    It just may come out that Holder has something on the Zero. If he possesses, for example, a directive from the WH authorizing FnF, then we are looking at blackmail from a member of the Regime elite. Hmmmm.
    When the Regime wants everyone to ignore FnF and focus, instead, on the economy, there is, indeed, wrong. The Liberals and the Regime are losing control (a la ABC’s Mitchell) of their political propaganda machine.
    Something is hinky in Lib Land and I love it! Too bad it’s at the expense of our government.

  12. sammy22 on June 23, 2012 at 9:12 pm

    I think that executive privilege is whatever any President defines it to be, including Pres. Obama.

    • JBS on June 24, 2012 at 10:03 am

      Then you want Obama to be King?
      Good Grief! Sammy22, you are letting your Liberal enabling agenda show. Follow the Mark Levin link. Search the presidential use of Executive Privilege.
      Can you Google?

  13. sammy22 on June 24, 2012 at 11:30 am

    Presidents “have” that privilege and use it, that’s all. See a sampling of how/when Pres. Bush (43) used it: http://en.wikipedia.org/wiki/Executive_privilege#George_W._Bush_administration

  14. Lynn on June 24, 2012 at 5:23 pm

    For goodness sakes, SOS has already saved the day! Get it! Executive Privilege is not absolute. No matter what any President thinks, he is not above the law and it can be denied. I hope it is denied, Brian Terry deserves that his death will be investigated.?

  15. sammy22 on June 24, 2012 at 6:04 pm

    Who is going to “deny” it?

  16. Lynn on June 25, 2012 at 7:01 am

    I assume (and you know what that means) it will come to SCOTUS.

    • winnie on June 26, 2012 at 7:21 am

      And if that ends up being the case, Lynn, it becomes *crystal clear* that pulling out the executive privilege card was just an attempt to stall further investigation during Obama’s bid for re-election.

  17. sammy22 on June 26, 2012 at 11:32 am

    SCOTUS doesn’t do anything until a suit is brought up (and then decides to hear it or not). So who is suing on this subject?

  18. Lynn on June 26, 2012 at 6:49 pm

    Ok, You made me read that blamed legalese of SOS’s Re Sealed Case. ?”the District Court must undertake a fresh balaqncing of the competing interests. So, Sammy the US District Court can deny.?
    SOS can tell me, if I have read this wrong.?

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