Denied: Another judge smacks down Obama administration’s “unwarranted,” “cavalier” use of executive privilege

December 19, 2013 0 Comments

posted at 12:01 pm on December 19, 2013 by Erika Johnsen

Back in September, a federal judge ruled that, why no, the Justice Department cannot legitimately argue that the judiciary somehow has no place to — you know — adjudicate the Obama administration’s dispute with Congress over their executive-privilege pull in the ongoing Fast & Furious-related documents case, and indeed, that “dismissing the case without hearing it would in effect place the court’s finger on the scale, designating the executive as the victor based solely on his untested assertion that the privilege applies.” The Justice Department has yet to let go of their ridiculously power-trippy assertion on that one, but in the meantime, another federal judge has issued a similar indictment of the Most Transparent Administration, Evah‘s prevailing “we do what we want” attitude on a separate executive-privilege case.

The Justice Department has been arguing that a guidance memo issued to federal agencies in 2010 (something really mundane-sounding called the Presidential Policy Directive on Global Development) was immune to a 2011 Freedom of Information Act request because it was circulated on a “need to know” basis and was therefore subject to executive communication privileges (even though it was never actually a classified document). The judge was notably unimpressed with that argument, however, and called out the administration’s “troubling” dodge of federal transparency requirements while pointing out that the documents in question didn’t even contain any “evidence that the [directive] was intended to be, or has been treated as, a confidential presidential communication.” The judge was not shy about taking jabs at the Obama administration’s penchant for undue secrecy, either, via Politico:

Acting on a Freedom of Information Act lawsuit brought by the Center for Effective Government, U.S. District Court Judge Ellen Huvelle concluded that the presidential order is not properly within the bounds of the so-called “presidential communications privilege.” The judge went further, calling “troubling” the sweeping nature of the government’s argument’s in the case.

“This is not a case involving ‘a quintessential and nondelegable Presidential power’ — such as appointment and removal of Executive Branch officials…where separation of powers concerns are at their highest. Instead, the development and enactment of foreign development policy can be and is “exercised or performed without the President’s direct involvement,” Huvelle wrote in her opinion (posted here.)

Huvelle noted that she ordered the document delivered to her under seal last month and said she disagreed with the government’s contention that the order is “‘revelatory of the President’s deliberations’ such that its public disclosure would undermine future decision-making.” She also found that “‘the President’s ability to communicate his [final] decisions privately’ … is not implicated, since the [order] was distributed far beyond the President’s close advisers and its substance was widely discussed by the President in the media.”

I’m really not sure what the administration’s logic was here, unless they once again just assumed they’d be able to get away with whatever the heck they felt like. As the judge put it, “the government appears to adopt the cavalier attitude that the President should be permitted to convey orders throughout the Executive Branch without public oversight… to engage in what is in effect governance by ‘secret law.’” Wouldn’t be the first time. Or the thousandth.


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