With Congress breathing down his neck on Benghazi, President Obama has a legal ace in his hand – executive privilege – which he could assert to protect the documents explaining exactly why the White House came to blame the attack on a YouTube video.
Politically, however, it’s a hand he dare not play. To get the strongest legal backing for the privilege, Obama would need to claim he personally participated in the conversations about telling America the falsehood that the 9/11 Benghazi terrorist attack was due to the video.
There are two types of the executive privilege. The stronger one is the presidential communications privilege, and the (much) weaker one is the deliberative process privilege.
In the Fast and Furious scandal, Obama asserted deliberative process privilege. The issue is now being fought in court, where court precedent is against the Justice Department’s arguments. While the move did buy Obama time, in all likelihood the defense won’t ultimately stand up, granting Congress, and the public, the right to see the documents in question.
If Obama were to exert the presidential communications privilege in Benghazi, the the public will never get White House testimony or documents to find out what really happened, in part because the issue is in the realm of foreign policy, an area where courts have held the executive privilege is strong.
But that would require a scandalous assertion by Obama that he participated in the discussions to blame the attack on a YouTube video.
If it’s only the deliberative process privilege, then Congress will steamroll the Obama administration in court, and the American people will learn everything.
Already, Democrats are discussing whether Obama will assert executive privilege.
When Fox News Sunday’s Chris Wallace asked former Congresswoman Jane Harman (who also has a Harvard law degree) why this possible “smoking gun” email was not disclosed prior to a federal court ordering its release, Harman said there “may be some claim of executive privilege.”
Deputy National Security Adviser Ben Rhodes’ email to then-U.N. Ambassador Susan Rice instructing her to blame the Benghazi attacks on an anti-Muslim Internet video has raised new questions and put the issue again on the front burner.
Who told Rhodes to blame the video? Was that person was acting on his/her own or instead passed along orders from someone higher UP the food chain?
From the CC list on the email, America now knows that a whole constellation of people around President Barack Obama was aware of this communication and strategy, including Press Secretary Jay Carney who has repeatedly assured the nation that these talking points came from the CIA, not the White House.
The House of Representatives will soon act on Speaker John Boehner’s call to form a House Select Committee solely dedicated to investigating the attacks. No doubt Rhodes will be subpoenaed to testify under oath, and all White House emails and documents relevant to this topic will be subpoenaed as well. And whatever names he reveals, those people will be subpoenaed as well.
Tough choices are coming for this White House.
Klukowski-Making Executive Privilege Work-59 Cleveland St. L. Rev. 31 _2011_
Ken Klukowski is senior legal analyst for Breitbart News and the author of “Making Executive Privilege Work,” published by Cleveland State Law Review. Follow him on Twitter @kenklukowski.
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