Hinderaker on Executive Privilege

John Hinderaker, an attorney who writes at the Powerline blog, has this trenchant observation about Eric Holder's argument for executive privilege in the Fast and Furious investigation:

Also, it's gratifying to see that Hinderaker, like me a commercial litigation attorney, reaches the same conclusion regarding the claim of "deliberative process" privilege by the administration -- under the relevant precedent, the Espy case from the D.C. Circuit, it's frivolous.

Holder’s letter is a remarkable document. Viewed from a strictly technical standpoint, it is a terrible piece of legal work. Its arguments are weak at best; in some cases, they are so frivolous as to invite the imposition of sanctions if they were asserted in court. I will explain why momentarily, but first this observation: if an opposing party requests documents that plainly are protected by a privilege, a lawyer will routinely assert the privilege, on principle, even though there is nothing hurtful to his case in those documents. On the other hand, a lawyer will not assert a lousy claim of privilege unless he badly wants to keep the documents in question out of the opponent’s hands because of their damaging nature. If I am correct that the administration’s assertion of executive privilege is baseless, it is reasonable to infer that the documents, if made public, would be highly damaging to President Obama, Attorney General Holder, or other senior administration officials.