Obtuse Observer

June 22, 2012

Holder, Contempt and Privilege

Privilege is a misleading term.  It’s not so much a privilege as a duty.  It is a legal duty owed by the one invoking privilege to protect those to whom the duty owed.  As such a doctor, priest or lawyer must invoke privilege to protect the privacy of their patient, penitent or client unless ordered by a court to disgourge the requested information.

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Executive privilege is related but not identical, it is not based on constitutional authority but exists as a necessary condition of the office.  It exists, in part, so that advisors are free to speak their minds without worry of reprisal in rendering advice to the President (just as in the above noted instances). 

What can be privileged? 

Conversations and documents carry a rebuttable presumption of privilege.  In function; should documents, notes etc be demanded the President may invoke privilege.  However, if challenged, the materials must then be submitted to a court for review and determination if privilege applies and if so to what extent.

Substantively, national security secrets (be they military or diplomatic) are given a great deal of deference by the courts and the President may invoke privilege without being a party to these communications. 

President Obama may legitimately claim privilege if the documents demanded by Congress are communications between him and Attorney General Holder or if they concern sensitive matters of national security.  In the first instance, President Obama would necessarily be presumed to have knowledge of the Fast and Furious disaster because it requires direct communication.  In the second instance credibility is strained to presume that a law enforcement program run by the Attorney General’s office was a sensitive matter of national security. 

What conclusions might we draw?  1)  President Obama knew about Fast and Furious or 2)he is invoking privilege on a mighty thin reed, a reed that is subject to review by a court to determine whether it will hold President Obama and Attorney General Holder… or not.

How is this important?  I’m pretty sure Operation Fast and Furious, which resulted in the death of Border Patrol Agent Brian Terry, was not on the radar for most Americans.  It is now.  And President Obama has made himself a big bright blip in the middle of it.  I’m guessing that this cannot improve his odds of reelection.

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1 Comment »

  1. This is a well-written article as it explains the use of executuve privilege without emotion or personal opinion on the issue at hand. In this day when almost everything government officials do finds its way to print or broadcast, many do not understand the reasons for invoking such privilege. Before jumping on the bandwagon of hostility against the President and Mr. Holder on this currently hot issue, I would prefer to let the court decide whether this matter involved our national security or not. Then I can make a reasonable judgment about it for myself.

    Comment by Kathy Emmons — June 22, 2012 @ 7:38 am

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