Fast and Furious and Executive Privilege Primer

The President has invoked executive privilege at the 11th hour to justify withholding reams of documents about the Fast and Furious gunrunning fiasco.   Much will be said about this in the coming days, so here's a primer:

1. The most salient and recent precedents on executive privilege are the D.C. Circuit's rulings in the 1997 Espy case (involving Clinton's Agriculture Secretary) and the 2004 Judicial Watch case (involving Clinton's 2000 pardons).    These decisions are from a Court of Appeals just below the Supreme Court.

2. Under these precedents, there are two possible ways a President can assert executive privilege, either (a) the "deliberative process" privilege; or (b) the "presidential communications" privilege.  

3. The deliberative process privilege applies to executive branch officials generally involved with presidential decisionmaking.    Importantly, however, under Espy, "where there is reason to believe the documents sought may shed light on government misconduct, the deliberative process privilege is routinely denied on the grounds that shielding internal governmental deliberations in this context does not serve the public interest in honest, effective government."   Put differently, again by Espy, the privilege "disappears altogether when there is any reason to believe government misconduct has occurred."   That threshold has clearly been met in Fast and Furious.  

4.  So the only privilege they appear to be able to assert would be the "presidential communications" privilege.   But there's the rub, as they say.

5.  The presidential communications privilege only covers communications made or received by presidential advisers in the course of preparing advice for the President, and is explicitly confined to White House staff and not staff in the agencies.   In other words, it requires "operational proximity" to direct presidential decisionmaking.      As Espy holds, "In particular, the privilege should not extend to staff outside the White House in executive branch agencies." 

Given these precedents, I don't see how the President has non-frivolously invoked the privilege, unless he is admitting that the communications withheld are with close Presidential advisers about advice to be given to him.   But... really?   Is he really admitting that he was that involved in Fast and Furious and its coverup?

A good discussion of the privilege can be found here, in a 2008 publication by the Congressional Research Service, which would appear to be authoritative, at least until the Supreme Court rules otherwise.