Re: Justice Dept says president has exerted executive privilege over Fast and Furious
Here is the basic understanding on claiming Executive Privilege. Unless the Administration can prove these 3 points concerning DOJ documents themselves, there isn't much hope that it will stand.
Note: While the document is long in coming to its conclusion, its actually a very good read.
http://fpc.state.gov/documents/organization/104284.pdf
1. The protected communication must relate to a “quintessential and nondelegable
presidential power.” Espy and Judicial Watch involved the
appointment and removal and the pardon powers, respectively. Other core,
direct precedential decisionmaking powers include the Commander-in-
Chief power, the sole authority to receive ambassadors and other public
ministers, and the power to negotiate treaties. It would arguably not
include decisionmaking with respect to laws that vest policymaking and
administrative implementation authority in the heads of department and
agencies or which allow presidential delegations of authority.
2. The communication must be authored or “solicited and received” by a
close White House advisor (or the President). The judicial test is that an
advisor must be in “operational proximity” with the President. This
effectively means that the scope of the presidential communications
privilege extends only to the administrative boundaries of the Executive
Office of the President and the White House.
3. The presidential communications privilege remains a qualified privilege
that may be overcome by a showing that the information sought “likely
contains important evidence” and the unavailability of the information
elsewhere by an appropriate investigating authority. The Espy court found
an adequate showing of need by the Independent Counsel; while in
Judicial Watch, the court found the privilege did not apply, and the
deliberative process privilege was unavailing.
