Denied: Another judge smacks down Obama administration’s “unwarranted,” “cavalier” use of executive privilege

posted at 12:01 pm on December 19, 2013 by Erika Johnsen

Back in September, a federal judge ruled that, why no, the Justice Department cannot legitimately argue that the judiciary somehow has no place to — you know — adjudicate the Obama administration’s dispute with Congress over their executive-privilege pull in the ongoing Fast & Furious-related documents case, and indeed, that “dismissing the case without hearing it would in effect place the court’s finger on the scale, designating the executive as the victor based solely on his untested assertion that the privilege applies.” The Justice Department has yet to let go of their ridiculously power-trippy assertion on that one, but in the meantime, another federal judge has issued a similar indictment of the Most Transparent Administration, Evah‘s prevailing “we do what we want” attitude on a separate executive-privilege case.

The Justice Department has been arguing that a guidance memo issued to federal agencies in 2010 (something really mundane-sounding called the Presidential Policy Directive on Global Development) was immune to a 2011 Freedom of Information Act request because it was circulated on a “need to know” basis and was therefore subject to executive communication privileges (even though it was never actually a classified document). The judge was notably unimpressed with that argument, however, and called out the administration’s “troubling” dodge of federal transparency requirements while pointing out that the documents in question didn’t even contain any “evidence that the [directive] was intended to be, or has been treated as, a confidential presidential communication.” The judge was not shy about taking jabs at the Obama administration’s penchant for undue secrecy, either, via Politico:

Acting on a Freedom of Information Act lawsuit brought by the Center for Effective Government, U.S. District Court Judge Ellen Huvelle concluded that the presidential order is not properly within the bounds of the so-called “presidential communications privilege.” The judge went further, calling “troubling” the sweeping nature of the government’s argument’s in the case.

“This is not a case involving ‘a quintessential and nondelegable Presidential power’ — such as appointment and removal of Executive Branch officials…where separation of powers concerns are at their highest. Instead, the development and enactment of foreign development policy can be and is “exercised or performed without the President’s direct involvement,” Huvelle wrote in her opinion (posted here.)

Huvelle noted that she ordered the document delivered to her under seal last month and said she disagreed with the government’s contention that the order is “‘revelatory of the President’s deliberations’ such that its public disclosure would undermine future decision-making.” She also found that “‘the President’s ability to communicate his [final] decisions privately’ … is not implicated, since the [order] was distributed far beyond the President’s close advisers and its substance was widely discussed by the President in the media.”

I’m really not sure what the administration’s logic was here, unless they once again just assumed they’d be able to get away with whatever the heck they felt like. As the judge put it, “the government appears to adopt the cavalier attitude that the President should be permitted to convey orders throughout the Executive Branch without public oversight… to engage in what is in effect governance by ‘secret law.’” Wouldn’t be the first time. Or the thousandth.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Let’s just make it simple. The judge is racist for doing this.

oldroy on December 19, 2013 at 12:03 PM

unless they once again just assumed they’d be able to get away with whatever the heck they felt like

ding ding ding

because they haven’t been penalized yet and no one gets fired for anything…
lsm…meh

cmsinaz on December 19, 2013 at 12:05 PM

And yet Holder is still AG and Obama isn’t being impeached. Wake me up with someone grows a pair or Harry Reid dies because unless one or both of those things happen this admin will continue to get away with lawlessness.

neyney on December 19, 2013 at 12:05 PM

The judge better not have any skeletons in the closet.

birdwatcher on December 19, 2013 at 12:06 PM

It’s because the nation has not yet fully grasped the perfection of “The Messiah”. After we he ascends into heaven will we fully understand.

Oil Can on December 19, 2013 at 12:07 PM

“Will no one rid us of this pestilent judiciary?”
/Obama & Holder

Bitter Clinger on December 19, 2013 at 12:11 PM

Uh-Oh. That judge better watch out- someone’s bound to be OFFENDED by this ruling.

BettyRuth on December 19, 2013 at 12:13 PM

And yet Holder is still AG and Obama isn’t being impeached. Wake me up with someone grows a pair or Harry Reid dies because unless one or both of those things happen this admin will continue to get away with lawlessness.

neyney on December 19, 2013 at 12:05 PM

This thing about impeachment is never going to get us anywhere. Do you really believe that the Senate would ever vote to convict Obama and remove him from office? Since that’s not going to happen, what purpose does it serve? It had no effect on Clinton whatsoever.

Challenge Obama on his lawlessness via the 3rd branch of government where possible, but impeachment is a non-starter.

Bitter Clinger on December 19, 2013 at 12:14 PM

Smacked by a Clinton appointee.

I don’t think they’ll even dare to appeal…but who’s to know at what level of stupidity they’ll stoop.

Podesta called the cons “Kool-Aid” people, while he aims to have obama pass all things like Adolf did.

The irony escapes the stupid Ds.

Schadenfreude on December 19, 2013 at 12:15 PM

Headline, sometime next month in WAPo, NYT:

“Racist, Right-Leaning Judge Cited by IRS for ‘Possible Irregularities’”.
Wait for it.

orangemtl on December 19, 2013 at 12:15 PM

And yet Holder is still AG and Obama isn’t being impeached. Wake me up with someone grows a pair or Harry Reid dies because unless one or both of those things happen this admin will continue to get away with lawlessness murder.

neyney on December 19, 2013 at 12:05 PM

Ben Gazi on December 19, 2013 at 12:15PM

rottenrobbie on December 19, 2013 at 12:16 PM

The judge must have been reading about Barbara Walters lately.

HiJack on December 19, 2013 at 12:24 PM

Not to worry, Roberts will make it right again for the administration.

HiJack on December 19, 2013 at 12:25 PM

One hundred or one thousand stories like this will not stop teh won from continuing in his quest to fundamentally changing our country.

D-fusit on December 19, 2013 at 12:25 PM

For some reason I just remembered that I have some new toys sitting in a safe that need their initial cleaning and sighting-in.

HiJack on December 19, 2013 at 12:28 PM

What’s stopping the White House from defying this judge, or any judge for that matter?

Who is the authority (with sufficient physical force) to enforce this judge’s ruling?

Is someone in the U.S. Secret service going to tell the President, “Mister President, we have orders to place yourself and the U.S. Attorney General under arrest” . . . . . ?

listens2glenn on December 19, 2013 at 12:28 PM

Back in September, a federal judge ruled that, why no, the Justice Department cannot legitimately argue that the judiciary somehow has no place to — you know — adjudicate the Obama administration’s dispute with Congress over their executive-privilege pull in the ongoing Fast & Furious-related documents case, and indeed, that “dismissing the case without hearing it would in effect place the court’s finger on the scale, designating the executive as the victor based solely on his untested assertion that the privilege applies.”

Eighty word sentence!

Akzed on December 19, 2013 at 12:29 PM

I am waiting for Obama to use the Afflu-enza defense next.

DAT60A3 on December 19, 2013 at 12:30 PM

Hope His Honor is ready for His Audit.

Washington Nearsider on December 19, 2013 at 12:30 PM

For some reason I just remembered that I have some new toys sitting in a safe that need their initial cleaning and sighting-in.

HiJack on December 19, 2013 at 12:28 PM

.
Those are my favorite kind of toys, too. … : )

listens2glenn on December 19, 2013 at 12:30 PM

I’m really not sure what the administration’s logic was here

I see no evidence of any logic being employed by this administration…..ever.

MichaelGabriel on December 19, 2013 at 12:31 PM

Headline I’d like to read:

Denied: Another judge smacks down Obama administration’s “unwarranted,” “cavalier” use of executive privilege

freedomfirst on December 19, 2013 at 12:31 PM

Completely out of control White House.

BuckeyeSam on December 19, 2013 at 12:38 PM

Judge Huvelle is a disciple of the Republicans of Jonestown or something.

/Podesta

VibrioCocci on December 19, 2013 at 12:39 PM

Hope His Honor is ready for His Audit.

Washington Nearsider on December 19, 2013 at 12:30 PM

Huvelle, a Clinton appointee, is female.

Schadenfreude on December 19, 2013 at 12:41 PM

This is a big, yawn, so what?
Nothing will happen to stop Obama and his use of executive privilege.
I am sure many in Congress are fine with it.

albill on December 19, 2013 at 12:44 PM

I wonder how Justice Roberts would go about declaring this a tax….

ElectricPhase on December 19, 2013 at 12:51 PM

This thing about impeachment is never going to get us anywhere. Do you really believe that the Senate would ever vote to convict Obama and remove him from office? Since that’s not going to happen, what purpose does it serve? It had no effect on Clinton whatsoever.

Challenge Obama on his lawlessness via the 3rd branch of government where possible, but impeachment is a non-starter.

Bitter Clinger on December 19, 2013 at 12:14 PM

We lost the PR war on impeachment a long time ago. Saying the word or writing the word simply leads to shrieks of how the Rs and/or the Tea Party are trying to reverse the last two elections — ignoring the fact that if Ogabe actually were to be impeached and ousted, the Gaffemeister would promptly be coronated into the Oval Office. Better to use the time and energy spent muttering about impeachment to get more and better conservatives voted into congress. Taking the Senate away from the Ds and retaining a majority in the House would knee cap the lazy little slime bucket more than an impeachment movement. (Besides, contemplting The Won spending the last two years of his term squealing indignantly about racism, partisanship, more racism, obstructionism and even more racism makes me want to lay in bushels of popcorn.)

catsandbooks on December 19, 2013 at 12:55 PM

I’m really not sure what the administration’s logic was here

Administration spokesman explains

Shy Guy on December 19, 2013 at 1:04 PM

and then hotair will run out of material to bash the President on…that’s what you’re really afraid of, right?

nonpartisan on November 19, 2013 at 4:47 PM

Chris of Rights on December 19, 2013 at 1:05 PM

Shy Guy on December 19, 2013 at 1:04 PM

Actually, the spokesman explains esplains.

Shy Guy on December 19, 2013 at 1:06 PM

Well U.S. District Court Judge Ellen Huvelle can kiss off an invite to the White House Christmas Holiday festivities!

No one disses THE KING without consequences.

Oh, and it’s “The most CORRUPT administration, evah!”

GarandFan on December 19, 2013 at 1:15 PM

The Court rejects the notion that merely hearing this dispute between the branches would undermine the foundation of our government, or that it would lead to the abandonment of all negotiation and accommodation in the future, leaving the courts deluged with subpoena enforcement actions

The new motion (posted here) asks Jackson to allow the U.S. Court of Appeals for the D.C. Circuit to weigh in on that question before the case continues.

This wouldn’t be the same DC Circuit court that Obama and Harry Reid are now in the process of packing full of lackeys beholden to their administration, would it?

Socratease on December 19, 2013 at 1:15 PM

“I, _____ (SSAN), having been appointed an officer in the Army of the United States, as indicated above in the grade of _____ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God.” (DA Form 71, 1 August 1959, for officers.)

While the POTUS is recognized as the CIC of the U.S. Armed Forces, the protection for the POTUS is implied, but not stated, as in the case of the enlisted man.

Please note that the United States Constitution is required to be protected by the Armed Forces in both this (officers) and enlisted.

Just a little something our political class needs to bear in mind.

Turtle317 on December 19, 2013 at 1:26 PM

Getting 99% through the system while losing one occasionally is the intended goal. Losing this one was no big deal. Simply a chance to establish precedence. They won’t stop everything or even most things.

Carnac on December 19, 2013 at 1:43 PM

Correct me if I’m wrong, but doesn’t Executive Branch execute the law? My point, who is going to hold them responsible, if they chose not to. It’s certainly not congress.

DDay on December 19, 2013 at 2:16 PM

Obama administration response to judicial branch interference.

“You have no power here, judiciary.”

BobMbx on December 19, 2013 at 2:52 PM

If impeachment is off the table then why would Obama stop? If Holder cannot be fired then why would he stop? If there is no accountability then why would the Dems stop?

People give up too easily these days and a majority of the American electorate are idiots.

We get the government we deserve. 40 years on from Roe v Wade I guess we are seeing that happen.

It’s a sad ending to what was once a great country.

neyney on December 19, 2013 at 3:12 PM

We really need to find out how to pull the accreditation of Harvard Law School. They graduate these people who have little or no understanding of the Constitution, which is the foundation of law in this country. Here we have Obama, trying really hard to make us a Banana Republic and we have our illustrious “Justice” department not investigating lawless departments within the executive.

If Pravda and Izvestia ever get involved in this fight, Obama is going to have serious problems.

bflat879 on December 19, 2013 at 3:20 PM

Boy, did this judge get up on the wrong side of the bed, or what?

Another Drew on December 20, 2013 at 1:12 AM

Obama had better move the White House to Chicago by an executive order if he wants to get away with this thuggery.

HellCat on December 20, 2013 at 1:41 AM