Commentary Magazine


Topic: Privilege Invoked

RE: No Executive Privilege Invoked

The Obama Justice Department has dropped all pretense of acting in a lawful, transparent mode with regard to the New Black Panther case. In a letter responding to the U.S. Commission on Civil Rights, the department in essence asserts: we don’t have to give you anything we don’t want to. And for this proposition, they cite not a single statute, regulation, Office of Legal Counsel opinion, or court decision. That is because there is none that would support the continued stonewalling.

Joseph H. Hunt of the Federal Programs Branch asserts that the “Department has designated Assistant Attorney for Civil Rights General Thomas E. Perez as the only Department witness to testify on its behalf before the Commission.” On what basis are they withholding percipient witnesses — including the trial team attorneys? Hunt doesn’t say. They just don’t want to. And Perez joined the department after the New Black Panther case was dismissed, so he really knows very little about the circumstances at issue. Yes, that is why he is the designee.

Hunt also makes clear that Perez is going to refuse to answer questions “concerning internal deliberation or other confidential matters.” Citation? None. Rationale? None. They don’t want to, I suppose.

Hunt writes in conclusion (with my comments in brackets):

Finally, we do not believe that the Commission’s subpoenas and requests override the well-established confidentiality interests in these types of materials that are integral to the Department’s discharge of its law-enforcement responsibilities. Thus, as we do in responding to congressional committees conducting oversight, we have sought to provide information to accommodate the Commission’s needs to the fullest extent consistent with our need to protect the confidentiality of the work product of our attorneys. [This is nonsense, by the way, since there is no attorney-client privilege between the executive branch and Congress; the American people are the “clients.”] The President has not asserted executive privilege, nor do we believe the President is required to assert executive privilege [because? citation?] for the Department to take appropriate steps to protect the law-enforcement deliberative confidentiality interests [now he’s just making stuff up] in this context. For the same reasons, we do not believe it is appropriate to appoint a special counsel. [The reason is circular — because the department thinks it doesn’t have to, it won’t appoint a special counsel to enforce the commission’s subpoenas. Yeah, no conflict of interest there, right?]

This is abject lawlessness, Nixonian in contempt for legal process. The Obama-Holder Justice Department is convinced that the executive branch can declare itself immune from scrutiny. The commission might choose to challenge the Justice Department in court, or wait for Congress to flip control and let a Republican majority subpoena the records and testimony. In the meantime, the Obama administration remains the least-transparent administration in history.

The Obama Justice Department has dropped all pretense of acting in a lawful, transparent mode with regard to the New Black Panther case. In a letter responding to the U.S. Commission on Civil Rights, the department in essence asserts: we don’t have to give you anything we don’t want to. And for this proposition, they cite not a single statute, regulation, Office of Legal Counsel opinion, or court decision. That is because there is none that would support the continued stonewalling.

Joseph H. Hunt of the Federal Programs Branch asserts that the “Department has designated Assistant Attorney for Civil Rights General Thomas E. Perez as the only Department witness to testify on its behalf before the Commission.” On what basis are they withholding percipient witnesses — including the trial team attorneys? Hunt doesn’t say. They just don’t want to. And Perez joined the department after the New Black Panther case was dismissed, so he really knows very little about the circumstances at issue. Yes, that is why he is the designee.

Hunt also makes clear that Perez is going to refuse to answer questions “concerning internal deliberation or other confidential matters.” Citation? None. Rationale? None. They don’t want to, I suppose.

Hunt writes in conclusion (with my comments in brackets):

Finally, we do not believe that the Commission’s subpoenas and requests override the well-established confidentiality interests in these types of materials that are integral to the Department’s discharge of its law-enforcement responsibilities. Thus, as we do in responding to congressional committees conducting oversight, we have sought to provide information to accommodate the Commission’s needs to the fullest extent consistent with our need to protect the confidentiality of the work product of our attorneys. [This is nonsense, by the way, since there is no attorney-client privilege between the executive branch and Congress; the American people are the “clients.”] The President has not asserted executive privilege, nor do we believe the President is required to assert executive privilege [because? citation?] for the Department to take appropriate steps to protect the law-enforcement deliberative confidentiality interests [now he’s just making stuff up] in this context. For the same reasons, we do not believe it is appropriate to appoint a special counsel. [The reason is circular — because the department thinks it doesn’t have to, it won’t appoint a special counsel to enforce the commission’s subpoenas. Yeah, no conflict of interest there, right?]

This is abject lawlessness, Nixonian in contempt for legal process. The Obama-Holder Justice Department is convinced that the executive branch can declare itself immune from scrutiny. The commission might choose to challenge the Justice Department in court, or wait for Congress to flip control and let a Republican majority subpoena the records and testimony. In the meantime, the Obama administration remains the least-transparent administration in history.

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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.

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.

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