Executive Privilege GQs

[What the .... ?!?!]

Here's the wiki for reference.

I watched much of the contempt hearing a couple days ago and have read a few articles. The former gave rise to some questions that the latter didn't address:

1. Is Executive Privilege geared toward the Chief Executive and those who work directly for him or is it geared toward the entire executive branch?

2. The letter asserting the privilege came from some lower (than Holder) level DOJ guy....... there were suggestions that the Office of the President should make the assertion. What is typical?

3. There were suggestions (at the hearing and at yesterday's press briefing) that the assertion needs to reference specific documents. Again, what is typical.

[Really Not All That Bright]

Good questions. As to (1), it's geared primarily to the POTUS and those who work closest to him. One of Congress' (modern) duties is a general oversight function, so a Pentagon janitor won't be invoking executive privilege if called to testify.

As to (2), it doesn't really matter. Ultimately, the privilege attaches to the office of the POTUS.

Originally Posted by What the .... ?!?!

3. There were suggestions (at the hearing and at yesterday's press briefing) that the assertion needs to reference specific documents. Again, what is typical.

As a general rule, any claim of privilege requires at least a minimal description of the documents which the privilege is supposed to attach to. Otherwise, it's impossible (1) for anyone else- including the court- to determine whether the privilege applies or not; and (2), for a court to determine whether the need for disclosure outweighs the privilege, in cases where it isn't absolute.

In terms of executive privilege, the documents must be identified specifically enough to determine whether they relate to a specified executive function under Article II of the Constitution. The separation of powers doctrine means that courts defer to the executive and legislature in matters which the constitution says they're in charge of (foreign policy and warmaking are common examples).

You may find the discussion in Section IV of the US v. [Richard] Nixon opinion enlightening. It's about halfway down.