Mark Levin: Executive Privilege and how the House should move forward legally

Right from the Great One’s desk:

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.

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  • E. Lee Zimmerman

    Obama: for an alleged Constitutional scholar, he seems to know very little about our Constitution.

    • sDee

      I think he and his patrons know a lot. They are attacking its underpinnings and seem to have taken a calculated risk that no one in Congress, the press or the public will actually stand up to stop them or can even figure out what they are up to.

      We will see.

      • Sober_Thinking

        That’s my fear. Just like the guns they illegally provided to criminals, these criminals will walk too. God will deal with them all if man can’t.

    • keyesforpres

      Constitutional “law” has nothing to do with the Consitution. A better name would be to call it “The Constitution as We Want it To Be”.

      • KenInMontana

        Constitutional Law has everything to do with the Constitution, what is taught at Harvard Law School (along with Yale, Columbia, et al) is actually ‘Case Law’, the practice of citing precedents to interpret the document rather than citing contemporaries and original sources. If you’d like to find an examples of Constitutional law as it should be, as it was prior to Harvard Law starting the practice of applying Case law to the document, research this man, Rob Natelson and the Independence Institute.

        • keyesforpres

          Not when regressive commies teach it.

        • Nukeman60

          Thanks for the tip on Natelson. Looks like I’ve got more reading lined up for my future learning curve.

    • badbadlibs

      I think he knows it very well, he just hates it.

    • He knows what he is doing. He is daring congress to stop him. He knows he always has the race card to play and a city or two to burn to make his point. He and Holder are dirty immoral men who will do anything to stay in power and advance their socialist agenda.

      • Nukeman60

        He’s more than clever. He’s dangerous. Not only does he know what he’s doing (well, not him, but his handlers), but he laughs in our faces every time he gets caught. There is no telling what can happen next.

        Lock and load.

      • carmtom13

        What part of the race card is he going to play, the white half or the black half? I remember when he was running in the primary and Jesse Jackson said he didn’t think BHO was black enough.

    • I think Romney is getting under Obama’s skin. From all indications, Obama is losing it. He’s literally going nuts and his campaign is unraveling.

    • aZjimbo

      nobama being a constitutional scholar is like saying barry is a Christian.

    • jdelaney3

      Barry was never a “constitutional scholar”, merely a lawyer who, incidentally and mysteriously, “voluntarily” surrendered his license to practice law. This mysterious guy is a puzzle wrapped in an enigma. When everything comes out on this unknown entity, the country–and Barry, I pray–will be in for a very rude awakening. First, of course, we must usher him out of our White House–one way or the other.

  • sDee

    Once again, Levin educates America. It is amazing to me that Congress, the media and the public will ignore and gloss over blatant intentional violation of the law by our highest officials, yet will not pay a bit of attention to the simple truth and background when laid out like this.

    In a completely different direction, I am wonder just how many pounds of incriminating documents Janet Napalitano can sneak out of the White House in one trip.

    • badbadlibs

      Well, if Sandy Berger can stuff some in his pants and remain a free man, just think how many this woman can get away with. Sickening how the left gets away with so many criminal actions.

    • Bottom line he is black and the Republicans are afraid of the racial ramifications. and obama knows it.

      • Kevin Stowell

        As hard as I find it to believe that the Repugs will give way to the destruction of the country for that reason, I’m afraid you’re right. You’d think, after almost four years of horrendous presiding, they would have all the defense they need–absolute cowards. I wouldn’t miss a stroke.

      • carmtom13

        You seem to forget his mother was white.

  • Nukeman60

    It appears there are two types of Executive Privilege: Presidential Communication Privilege and Deliberative Process Privilege. It appears Obama has invoked the latter of the two, which deals with protecting decision-making processes from scrutiny.

    …courts have stated that the deliberative process privilege is negated when the party seeking discovery has provided “reason to believe” that governmental misconduct will be uncovered by the requested material‘ – ESCAPING THE FISHBOWL: A PROPOSAL TO

    Issa may have some footing here. We will see what they do.

    • Hey Nukefriend, just in case, here’s the latest insider report- Since dear leader invoked executive privilage, he’s owned Fast and Furious now…

      • Nukeman60

        Thanks for the Ulsterman. I particularly liked the update. The Dem that Chaffetz had a run in with was probably Speier. He got under her skin today at the hearing, so she was probably still steaming.

        If the vote next week goes as expected. Issa will send it to the US Attorney of the District of Columbia. As expected, he probably won’t prosecute, so Issa will need to get a second resolution and then take Holder to court on the Deliberative Process Privilege. That should end up going to Supremes and there is where we will see results, in my opinion.

        However, if I read into Ulsterman correctly, something is stirring in the White House right now and I suspect ‘something’ is about to hit the fan. I like the sound of it.

        BTW, if you ever want a headache real fast, try reading the entire article above on Deliberative Process Privilege (j/k). I barely got through the entire article (46 pages, albeit short pages).

        • I’m in the mood for a headache. I’ll read it now 🙂 Thanks Nukefriend.

          PS, I believe something in the WH is gonna hit the fan too, but how dear leader spins it will probably end up making the rest of us get hit with whatever it is that hits. It’s going to keep getting interesting.

          • Nukeman60

            Don’t say I didn’t warn you. It’s legal shtuff.

            Wouldn’t it be great if Breibart came out with a new bomb just about now. I know they have a summer full of nuggets just waiting for us. Timing would be great.

        • Sorry my friend, I got the headache too fast and couldn’t read it all lol. Maybe tomorrow.

          • Nukeman60

            It’s not important to read the whole thing. My quote was the key phrase. I just had to dig to find it. There are far better things to look at. Perhaps, you can have your boy read it and give a report. lol

  • HiramHawk

    House GOP had better not screw this up.

    • Some will try, but others will fold as soon as dear leader plays the next race card.

    • Constance

      They will. I’m just bracing myself for the inevitable folding like a cheap suit. Hopefully, I will be pleasantly surprised, but I’m not counting on the GOP to do anything other than lip service. I have no faith in house leadership.

  • 911Infidel

    Obama and his little minions know full-well what they’re doing. Despite Obama’s claims to be a Constitutional expert, he’s nothing of the sort. He relies solely on the advice of his sleazy cartel of lawyers to find holes in the system and exploit them to the fullest political advantage. Chief among those sleaze merchants is the paid liar Holder.

  • just released “JOBS SONG” for Romney Camp – listen share “like”

  • toongoon

    Hey, lets have some transparency here. Perhaps the curtain is about to fall.

    Yep, on the job training. Obama should know at least a little bit about the constitution he hates so much.

  • stage9

    I would like to invoke Civic Privilege and call for Obama’s impeachment immediately.

  • Republicans have to move forward. The people want it and demand it.

    We can’t let lawlessness run rampant from someone who thinks he can control everything.

  • DocBarry1

    Superb – please forward to the House leadership and to Issa

  • PAWatcher

    IMHO Issa and this committee have wasted enough time and kowtowed to Holder/obama for long enough……a special prosecutor should have been appointed when the whistle was blown. I don’t trust the republicans to handle this correctly. The results so far have not been encouraging.

  • NHConservative0221

    I saw links earlier to Maobama criticizing Bush for using Executive Privilege in 2007, what did Bush use it for?


  • Philo Beddoe

    How would you like to get the bill for Levin’s recommendation?

    Another great commentary

  • jdelaney3

    Levin always gets it right and makes an otherwise murky constitutional issue crystal clear to all but the willfully deaf, dumb and blind.

  • Sober_Thinking

    Reminds me of a snearing German ambassador in Lethal Weapon (II?) that arrogantly sneered, “Diplomatic Immunity”, when confronted with his wrong-doings.

    Obama blew it big time. He and Holder… we could also include Janet (dammit) too… should all be fired at the very least. Holder should be put in jail.