Conservative author and constitutional attorney Mark Levin, in response to President Obama's controversial decision to invoke executive privilege regarding Fast and Furious information being withheld from Congress by Attorney General Eric Holder, posted a legal opinion concerning this matter at his Facebook page Wednesday.
It follows in its entirety with the author's permission.
As the Supreme Court recognized in US v. Nixon, the Executive Branch has a legitimate interest in confidentiality of communications among high officials so that the President can have the benefit of candid advice. However, as President Washington himself recognized, that privilege does not protect the President or his underlings from embarrassment or public exposure for questionable actions.
As the Supreme Court has also recognized repeatedly, the Congress, in the exercise of its constitutional powers, has the essential power to investigate the actions of the Executive Branch.
In this case, the exercise of Executive Privilege seems, in its timing and over-inclusiveness, to be nothing less than a political delaying tactic to prevent exposure of wrongdoing and incompetence that resulted in the murder of a American law enforcement agent and injury and death of many others. Further, a wholesale claim of privilege is facially improper: the President should be held to the standard that anyone claiming privilege is held to: identify each document in a log so that privilege can be disputed. (U.S. v. Nixon, 1974)
Because among the categories of documents sought are all those relating to the recantation by Holder of testimony before Congress, the demand goes to the core of the Congressional power under Article I. In this respect, this is not a general or oversight inquiry but a determination of why the Attorney General of the United States testified falsely before Congress about his own knowledge of a federal program. Presumptively, none of this category of documents is protected by Executive Privilege for wrongdoing per se is not protected by the privilege.
The right way to proceed is to hold Holder in contempt by resolution of the House and seek authorization from the House for the Committee, by its Chairman, to proceed by civil action to compel production of the documents. (Holder will not enforce a holding of contempt against himself -- and by the way, he should have authorized, say, the assistant attorney general for legal counsel, to handle the contempt matter once the House voted as at that point he is representing his own interests and not those of the nation generally). Chairman Issa should file suit in federal court in DC and seek expedited action. There is no need for Senate action. The use of this procedure has been acknowledged by the Congressional Research Service in a 2007 study. Further, a privilege log should be sought by Issa and ordered produced immediately by the court, in camera inspection done promptly by the judge, and a final order entered compelling production of all documents for which no legitimate reason justifies Executive Privilege.
Yes, some documents may be covered by EP, but the blanket attachment of that label flouts the law and the Constitution, and harms the legitimate assertion of EP by Presidents of either party in the future. The Constitution is far too important to be subject to the caprice of this President and an AG who, on its face, wants to be free from scrutiny about why he testified falsely before a Committee of Congress.
Executive Privilege is a very important implied executive power, used in various forms since the presidency of George Washington. Therefore, it's misuse and abuse, to cover-up wrongdoing, conceal embarrassing information, or advance a political agenda, diminishes the ability of future presidents to assert it legitimately.