What executive privilege isn’t


As we discussed earlier, the White House asserted executive privilege this morning on certain Justice Department documents related to the so-called “Fast and Furious” controversy. The Republican talking point of the day seems to be pretty straightforward: this must mean the president is directly involved.

A spokesperson for House Speaker John Boehner (R-Ohio) said the decision “implies” that White House officials were involved in the operation. Fox News’ Andrew Napolitano made the same argument on the air: “Executive privilege protects communications with the president, the human being of the president, not with people that work for him and the Justice Department.”

No matter what one thinks of the underlying controversy – and for the record, I think the right’s interest in the matter is kind of silly – it’s worth pausing to clarify that executive privilege doesn’t necessarily involve communications with the president. Josh Israel noted there are actually “two types executive privilege: the robust ‘presidential communications privilege’ and the more limited ‘deliberative process privilege.’”

The White House may invoke the latter to apply to executive branch officials outside of the president’s inner circle, as long as they were involved with the government’s decision-making process. Presidents Ronald Reagan, George H.W. Bush, and George W. Bush all asserted executive privilege in matters not involving presidential communications.

And Bush Administration Attorney General Michael Mukasey invoked the same “deliberative process privilege” as recently as 2008, rejecting congressional subpoenas for reports of Department of Justice interviews with the White House staff regarding the Valerie Plame Wilson identify leak investigation.

Republicans, including House Oversight Committee Chairman Darrell Issa (R-Calif.), are well aware of this – they endorsed the distinction during the Bush/Cheney era – and have acknowledged that executive privilege is not limited to the president’s direct communications.

But they’re playing a political game today, hoping you aren’t well aware of this.