Wednesday, June 20, 2012

A quick note on "executive privilege" [UDPATED]

 ***Please scroll to bottom for important update***

Drudge headline today (hat tip: @TheHenry)
There's going to be a lot written about the Fast and Furious hearing today debating whether to hold Attorney General Eric Holder in contempt regarding failure to turn over materials requested by subpoena, but I wanted to make a quick point about a comment Rep. Darrell Issa made about the failure to turn over a privilege log.

In any legal proceeding, if you get a subpoena and want to claim that something is "privileged" (i.e., it's protected by the attorney client privilege, there are national security concerns, etc.), there is a procedure for responding to the request, to formally assert the privilege and allow the court to decide whether your claim of privilege is legitimate. This applies in criminal cases, civil lawsuits, as well as Congressional subpoenas like the subject of Holder's hearing today.

One of the key requirements to properly assert a privilege is that you have to complete what's commonly referred to as a "privilege log" and turn it over to the party who sent you the subpoena. Every state has a set of civil procedure rules that lay out requirements for a privilege log, and the federal rules are similar. I'll cite the Florida Rules of Civil Procedure because they are the ones with which I'm most familiar:
Rule 1.280(b)(5) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
In simpler terms, if you want to refuse to turn over documents by claiming they are privileged, you have to submit a list describing those documents. In my previous work as a commercial litigation attorney, I often worked on these privilege logs. Generally, this would involve listing information like "Letter dated March 5, 2003 from ABC, Inc. CEO John Smith to in-house counsel Susie Jones, attorney-client privileged communication" or "Handwritten notes dated April 21, 2004 by in-house counsel Susie Jones in preparation for mediation, attorney work product."

In other words, if the White House wishes to assert an executive privilege to protect the Department of Justice from turning over the documents, that privilege should have been submitted with a privilege log. Otherwise, there is no way to judge whether the privilege has been legitimately claimed.

If the privilege is disputed, a judge can order an "in camera" review of the contested documents: a secret, closed door inspection by the judge who would protect the secrecy of any documents that are truly privileged, but order the production of any documents that were not.

Of course, if you are just trying to stonewall a Congressional investigation that you fear is going to uncover information very damaging to the re-election hopes of a certain resident of Pennsylvania Avenue, then, well, maybe this is a good strategy!

UPDATE: Good posts by Ben Howe at RedState and at on this topic.

UPDATE II: Thanks to @earldean1 for sending this link to a newsletter from the Akin Gump law firm regarding Attorney-Client Privilege in Congressional Investigations, reaffirming my comments above.

UPDATE III: Here's a great post by Gabriel Malor with more information on what "contempt of Congress" means.

UPDATE IV: Oh, the hypocrisy of the Left. They had no problem demanding a privilege log when they wanted documents from George Bush:

From the July 24, 2007 Judiciary Committee Memo objecting to the use of executive privilege regarding communications with Harriet Miers in her former role as White House Counsel:
The White House relies on the presidential communications executive privilege, even though the White House has specifically stated that the President did not receive advice on or participate in the U.S. Attorney firings. And the Administration and Ms. Miers have not only refused to produce subpoenaed documents, but have also refused even to provide a log identifying the withheld documents and providing the basic facts necessary to support the claim of privilege, even though such logs are routinely required by the courts in these types of cases.

[Cross-posted at RedState]


  1. so they just have to make a list of what they want secret? that doesn't seem so complicated. Guess Eric Holder really does have something to hide? Or maybe I should say Obama does??????

  2. We're discussing this on #foiachat on twitter this Friday. Would love for you to join.

  3. I bet if you kept searching, you'd find similar examples under previous assertion of executive privilege where they did turn over a privilege log. Since when is "I don't wanna tell you!" a legal defense?


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