Here's the process for withholding privileged documents if you're a reasonably principled lawyer.  You put together the entire universe of documents that appear to be responsive to the document request.  Then you examine every single document to determine whether it falls within an established privilege, usually "work product" or "attorney-client."  The first cut of "work product" documents would include anything that could possibly be said to quote or reflect advice that the client received from counsel.  For the "attorney-client" category, the first cut would include anything from the attorney to the client or vice versa, including anything cc'ed to the law firm.

If only you got to stop there, document production would be a breeze.  The next step is harder.  In the case of work product, for instance, often the main document is OK, but a line or two might say, "As you know, counsel advised us that ______," and the blank would need to be redacted.  In the case of attorney-client privilege, you're not going to get away with withholding everything that was circulated past the lawyers.  If the cc list included anyone who wasn't a client, for instance, it goes back in the pile to be produced, because the privilege requires a showing that the advice was given and held in confidence.  Even if the cc list is made up exclusively of lawyers and clients, it still has to involve the quest for or rendition of legal advice.  You can't shield ordinary business documents from production by slapping a "lawyer cc" on them, though that gambit is often tried.

Even when you finish this more rigorous secondary process, you don't simply get to keep the documents you think are privileged and tell the other side to pound sand.  You have to produce a privilege log, a little chart that identifies each document, including its date, its recipients, and enough about its general nature to explain why you claim a privilege attaches to it.  This is a critical stage, because the judge and any competent lawyers in the case can take one look at your privilege log and see whether you're serious.  The absence of a privilege log, or the absence of detail, is a big red flag that screams "My idea of screening for privileged documents to sort everything into two piles:  the documents that will embarrass me and the documents that won't."  It's a more common approach than you might think.

Sen. Chuck Grassley (R-Iowa) is making a very reasonable demand today for a privilege log of the "Fast and Furious" documents withheld by the White House on the ground of executive privilege.  He's also on solid ground with the following observations:
“Just last week, when the attorney general was in front of this committee, I asked him twice if the president could claim executive privilege to protect a certain internal Justice Department email that has been withheld,” Grassley said.  “Given the explicit opportunity, the attorney general did not indicate he would be asking the president to assert executive privilege over such documents.” 
“The attorney general repeatedly claimed that the Justice Department was making an ‘extraordinary offer’ Tuesday night,” Grassley continued.  “The only thing extraordinary is that the attorney general offered a promise to produce documents one day and then asked the president to claim executive privilege over them the next.” 
Grassley also attacked Obama for waiting until the eleventh hour to assert the privilege.  “If this were a serious claim, it should have been raised much earlier,” Grassley said.
It's very difficult to understand how an executive privilege could attach to documents about a program the President claims not to have had any knowledge of.   Nor is it easy to understand how the Attorney General can assert with a straight face that the program in question dates from the Bush administration, and that he terminated it many months before he now asserts he even became aware of it.   In a trial, this kind of thing would prompt the filing of what we used to call a "motion to get real."

Discovery disputes are boring.  Judges hate to get involved in them, so they tend to blow them off by taking a "plague on both your houses" approach, which gives crummy lawyers an incentive to abuse privileges and hide evidence.  The media is doing the same thing right now, painting the picture of yet another partisan attack based on an arcane legal theory, which voters should tune out in frustration.  I hope they don't.


E Hines said...

A couple of purely legal questions on this:

The Cabinet-level Departments, and all subordinate to them, as well as the "Independent Agencies" and their ilk, are all part of the Executive Branch, of which, presently, Obama is the MFWIC (and I use the rude version of that acronym accurately descriptively), and so they're all subordinate to him. As such, given Executive Privilege at all, can he not assert it anywhere in his Branch, or is it really limited to the Executive Office itself?

Secondly, Nor is it easy to understand how the Attorney General can assert with a straight face that the program in question dates from the Bush administration, and that he terminated it many months before he now asserts he even became aware of it.

In addition to the motion, wouldn't this also support perjury charges, especially since both claims contained in that statement are false?

Eric Hines

Grim said...

Yeah, that's usually what comes next in these dances between the Congress and the Executive: fifth-amendment claims.

The final act is pardons by the outgoing president.

Anonymous said...

Good summary of the situation. I watched those hearings, and yet again in this case, there are specific documents that had been credibly identified by the whistleblowers that have not been produced.

I find it curious that, after all this time, the DOJ has yet to be able to identify who authorized this operation, which contravened a number of standing rules adhered to by the agency. A proposed operation that is outside the normal rules for a acceptable action requires higher, not lower, level of approval. This requirement is system-wide for the US government.


Texan99 said...

Eric -- In the 1998 case of Espy, the S. Ct. held:

“Not every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege. In particular, the privilege should not extend to staff outside the White House in executive branch agencies. Instead, the privilege should apply only to communications authored or solicited and received by those members of an immediate White House advisor’s staff who have broad and significant responsibility for investigation and formulating the advice to be given the President on the particular matter to which the communications relate. Only communications at that level are close enough to the President to be revelatory of his deliberations or to pose a risk to the candor of his advisers.”

In the earlier decision in U.S. v. Nixon, the S. Ct. acknowledged a much more narrow privilege, limited to communications with the president himself -- and allowed even that one to be invaded on a showing of sufficient need.

Executive privilege is said to be "rooted" in the Constitution, but it is not defined there or in any statute. Different presidents have tried out different interpretations. The S. Ct. has made it clear that the privilege, though important, can be invaded, according to a sliding scale that takes into account how personally involved the president was, and how important is Congress's need to investigate. The White House will be turning itself inside-out to inflate the importance of these hidden communications while downplaying the involvement of the chief executive or indeed any member of the White House staff.

Texan99 said...
This comment has been removed by the author.
Anonymous said...

Great summary of the process for determining whether documents are privileged or not. Once again I learn something from reading here...

Grim said...

All part of the service. Speak up more.

PALADIN said...

The federal lawyers have ben appointed to give this a stare, although they are all Obummer's appointments. What is needed is a special prosecutor chosen by congress , not by Obama. Once that is done he can subpoena those papers ? One thing for sure, it's an Election year and the only one reporting on this and giving the FACTS is Fox News and a few other independents.