Wednesday, November 19, 2008

Will Executive Privilege Become Cool Again Under AG Holder?

When Eric Holder, Barack Obama's recent choice for Attorney General, appeared before the Senate Judiciary Committee on October 20, 1999, he was Bill Clinton's deputy attorney general. Holder was called before the Committee to discuss pardons granted to FALN terrorists, but he did what Democrats have loudly condemned the Bush administration for doing for eight long years - he claimed executive privilege. Today, we know that, with respect to FALN, Holder ignored vehement opposition from the FBI, the Bureau of Prisons, and his own Justice Department and, rather than consult with attack victims and their families, instead met privately with members of Congress, recommending what the FALN members should do to facilitate a grant of presidential clemency. We now wonder if the mesmorizing aura of Obama will make the currently evil tool known as executive privilege all "cool" once again? Or, will Holder actually receive a serious vetting and confirmation hearing? Here are some excerpts from Holder's statement to the Committee:

Mr. Chairman and distinguished Members of the Judiciary Committee, I welcome the opportunity to appear before you today ....

I wish to begin by extending my heartfelt sympathy to those victims and their families whose lives were tragically affected by the criminal conduct of the FALN. It is difficult to fully comprehend the extent of the pain and suffering these victims were forced to endure ...

And one of the most important points I have learned from my 23-year career is that every tragic story of victimization is unique and unforgettable. And so, I want the victims of FALN violence to know that our thoughts and prayers remain with them now and in the future.

It is the exclusive prerogative of the President to decide what actions he will then take regarding the petition for clemency.

From the log you can see that in 1996, in accordance with Department regulations, the Department submitted a written report and recommendation to the White House regarding whether the President should grant or deny the petition for clemency, and that there were subsequent communications between the Department and the White House on the subject of clemency for the Puerto Rican nationalists as recently as two months ago. However, because of the President's assertion of privilege, I am not at liberty to disclose the contents or substance of the report, recommendations, or communications ...

The Department of Justice is obligated to respect and follow that assertion of the privilege.
We believe that there is a solid legal basis for the President's assertion of executive privilege here. Executive privilege is a necessary corollary of the executive function vested in the President by Article ll of the Constitution ...


The privilege is properly asserted where, as here, the President's need to maintain the confidential nature of presidential communications and executive branch deliberations outweighs Congress's need for the information contained in privileged documents.

The documents in the Department's files that are the subject of the President's assertion of privilege fall squarely within the well recognized scope of executive privilege ...

These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution. (418 U.S. at 708).

Executive privilege is not limited to advice and other communications made to the President. Rather, it is well established that the privilege also applies to intra-agency deliberations, such as the deliberative communications within the Department of Justice in connection with the preparation of advice to the White House on this clemency matter ...

Thank you again for the opportunity to appear before you on this important matter. The Department of Justice wants to continue to work with the Committee to appropriately address any issues relating to this matter.

See Holder's full statement here.

2 comments:

Anonymous said...

Prof,

All excellent points. I would also refer you to the House Gov't Reform Committee's report on Clinton's last-minute pardon fest. There is another Holder connection that has been little commented on, namely the commutation of Carlos Vignali.

As you may recall, Vignali was a drug dealer whose father (also reputed to be in the drug business, though never proven) paid Hugh Rodham $200,000 to secure a commutation. They rounded up an impressive array of political support, including Alex Mayorkas, the U.S. Attorney in LA (now part of the Obama transition team at DoJ). Mayorkas supported commutation, even though he knew nothing about the case (which was prosecuted in Minn) and was warned away by the US Attorney in Minn, Todd Jones, who told him about the father's bad reputation. Mayorkas ignored Jones' advice and supported the commutation anyway, for which he later apologized.

Then, in a very usual move, Holder refused to sign the Justice Dept's report recommending that Vignali's commutation be denied! Instead, he allowed the Pardon Attorney to sign it, but he obviously didn't want his fingerprints on it. Holder claims he was against the commutation, but then why did he refuse to sign the report? Was it simply a coincidence that, of all the many thousands of commutation petitions that passed through the Dep. AG's office, he refused to sign this particular report? Did he know about Hugh Rodham's involvement in the case? Had any of Vignali's political supporters talked to Holder about it?

None of this is news. Look at the chapter on Hugh Rodham. Let's hope the Senate digs a little deeper than Marc Rich.

P.S. Ruckman, Jr. said...

Editor: You might say then, that Holder voted "present." Hmmmm.

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