Rank has its privileges, after all, and the highest rank can claim executive privilege. The White House will informally use its privilege to keep e-mails between Barack Obama and Hillary Clinton on her secret e-mail system shielded from public scrutiny, the New York Times’ Michael Shear reports.

This makes for an interesting Friday night document dump, no?

The White House will try to block the release of a handful of emails between President Obama and former Secretary of StateHillary Rodham Clinton, citing longstanding precedent invoked by presidents of both parties to keep presidential communications confidential, officials said Friday.

The State Department discovered the emails between Mr. Obama and Mrs. Clinton as part of its effort to release the former secretary’s emails, several thousand more of which were scheduled to be made public on Friday. Mr. Obama’s correspondence was forwarded for review to the White House, which has decided against release.

That decision could intensify the political struggle between Mrs. Clinton, who is running for president, and congressional Republicans, who have pressed for disclosure of her emails as part of an investigation into the administration’s handling of the attacks on an American compound in Benghazi, Libya, in 2012.

This sounds a little more juicy than it is, which we’ll get to in a moment. The bigger news is that another 268 e-mails from Hillary’s secret server have been classified, including at least one that she initiated:

Hundreds more emails from Hillary Clinton’s time as secretary of state were newly deemed classified as part of Friday’s State Department release of more than 7,000 pages of her messages, which revealed more about Clinton’s knowledge of embassy security issues and lighter moments like Clinton’s use of emojis.

Friday’s document release is the sixth of its kind and with it, more than half of the messages turned over to the agency have now been made publicly available. The 268 emails now deemed classified in this batch are at the lowest classification tier, according to State Department spokesman John Kirby, who said that none of these emails “were marked classified at the time they were sent or received.” There are now between 600 and 700 emails newly marked as classified since the releases began in May.

Shoshana Weissmann finds this message from Hillary with its contents redacted:

hillary-email

 

Back to the privilege claim. Unlike the other claim of executive privilege made in the Operation Fast and Furious probe by Congress involving Eric Holder, privilege in this circumstance does have long precedent. This directly involves communication between a President and his advisers (which includes Cabinet Secretaries), the case for which executive privilege explicitly exists. In order to overcome that claim, Congress or a court would have to have cause to suspect that specific violations of the law exist. One cannot conduct fishing expeditions without something specific in mind, unless a President chose to release the communications and waive the privilege. The classic case of piercing the privilege was with Richard Nixon’s tapes in the Watergate scandal, when there was already plenty of reason to suspect that the tapes had information relating to potentially criminal behavior. Nothing like that exists here, at least not yet.

Of course, invoking that privilege carries some political risks regardless of whether the circumstance falls completely within the classic model or not. In this case, Congress is looking into the deaths of four Americans in a terrorist attack on a consulate for which it provided inadequate security. If any of these e-mails relate to the attack or to the security of the Benghazi compound, then withholding them becomes at least politically problematic. The odds of that are probably pretty low, but the fact that they’re locking the e-mails down makes it impossible to rule out, too.

The mystery doesn’t do many favors for either Hillary Clinton or Barack Obama. It just serves to remind everyone that the White House knew full well that Hillary was using a private e-mail system and never bothered to mention it while Congress and several courts were being told that State had no e-mail records responsive to numerous and legitimate requests related to both oversight and transparency. Keeping those e-mails secret in the middle of an investigation into Benghazi only ties Obama more closely to both the Benghazi probe and Hillary’s e-mail scandal.

The bigger issue for Hillary, though, is the fact that the State Department has again had to classify hundreds of e-mails improperly stored and transmitted as classified, including one she herself sent. The privilege claim is a political issue; the classification issues are potential felonies.