The Other Executive Privilege--and Why It Doesn't Protect Eric Holder

Some Republican leaders have made the mistake of saying that President Obama’s invocation of executive privilege over Attorney General Eric Holder is an admission that the White House has been involved in Operation Fast and Furious. The reality is that there is a form of executive privilege that a president can invoke even when he is not at all involved in a situation. But that privilege will not protect Holder, so the truth will eventually come out, and Obama will pay the price.

The reason even many Washington insiders and lawyers are unaware of this second form of privilege is that it has been clearly articulated only by the U.S. Court of Appeals for the District of Columbia Circuit, not the Supreme Court. That’s because most executive privilege fights tend to change after each election, so most battles don’t last long enough to reach the Supreme Court. But most executive privilege lawsuits are filed in D.C., so the D.C. Circuit’s decisions on this suvbject are every bit as binding as Supreme Court decisions, unless or until the Supreme Court chooses to take up this matter. 

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