Commentary Magazine


No Executive Privilege Invoked by White House in Black Panther Case

The U.S. Commission on Civil Rights resumes its hearings tomorrow. On tap will be civil rights division chief Thomas Perez. Today the commission sent a letter to two Justice Department officials, which reads in part:

[T]his is to confirm your representation that there has been no formal assertion of executive privilege with regard to any of the items sought by the Commission pursuant to its discovery requests. As discussed, this matter needs to be clarified. In its response to the Commission’s discovery requests, the Department claimed deliberative process privilege with regard to the materials sought. As recognized by the courts, the deliberative process privilege is a subset of executive privilege and “does not shield documents that simply state or explain a decision the government has already made or protect the material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government’s deliberations.” See In re Sealed Case, 326 U.S. App. D.C. 276, 284, 121 F.3d 729, 737 (1997).

In short, the Justice Department can’t have it both ways. If Obama has not invoked executive privilege, there is no legal basis for refusing any requested documents or for declining to answer the commission’s questions completely. In prior correspondence to the Justice Department, the commission cited binding precedent from the Office of Legal Counsel — which presumably has not changed its view since Eric Holder arrived – that unless the president or a top official invokes executive privilege, there is no other statutory or common law basis available to the department that would justify refusing to disclose information. And indeed, there is a federal law requiring the executive branch to co-operate with the commission’s work.

So what will Perez do tomorrow? It remains to be seen whether he will continue to stonewall as the commission presses for a detailed explanation as to why the case was dismissed and who played a role in ordering the dismissal. Will he suggest that the department’s trial team of lawyers was incompetent or derelict in bringing the case against the New Black Panther Party? Surely the professional staff at Justice, including those attorneys in the appellate section that endorsed the trial team’s recommendation, would find that quite shocking. And if those career lawyers were not mistaken in their assessment of the law and the facts, then what was the basis for dismissing the case? Moreover, is this Justice Department committed to enforcing the civil rights laws even when minorities are the perpetrators of voter intimidation? It should be an interesting proceeding tomorrow.