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.