Doctors are granted confidentiality in discussing their medical patients’ problems, but the Obama administration is asserting that spin-doctors also enjoy a similar immunity from mandatory disclosure of their clients’ problems. That assertion is at the heart of a ferocious battle over the breathtaking claim of executive privilege made by the Obama administration over documents related to the Fast & Furious scandal that were subpoenaed by a House committee, and sued for by Judicial Watch under the Freedom of Information Act.

The legal battle over whether the discussions over how to handle Congress and the public’s desire to know why the Obama administration issued and then withdrew a February 4, 2011 letter from Attorney General Eric Holder that made false assertions to Congress about when he first knew of the program is sure to occupy the courts, probably beyond the time President Obama leaves office.

Last week, a federal court compelled the administration to produce a Vaughn index, a 1,3000 page-long list of all the documents requested and a notation of the grounds on which they are being withheld. John Hinderaker of Powerline has gone through much of the Vaughn index and discovered many instances in which the substance of the discussion being withheld is PR strategy in handling Congress and the public regarding the withdrawal of that letter misleading Congress (which is a crime).

I recommend you read Hinderaker’s essay, which offers a number of examples from the list and places in context the spin discussions that are claimed to be policy deliberations, the sort of issue protected by executive privilege.  Included are  a number of communications between Holder and his wife, a medical doctor who does not work for the federal government and who cannot on any grounds be considered part of official policy deliberations. This assertion is either a red herring, intended to distract, or an indication that Holder may have blabbed something truly incriminating to his wife in an email.

Hinderaker summarizes the relevant laws:

The purpose and scope of the deliberative process privilege were articulated by the D.C. Circuit Court of Appeals in In re Sealed Case (Espy), 121 F.3d 729 (D.C. Circuit 1997):

The most frequent form of executive privilege raised in the judicial arena is the deliberative process privilege; it allows the government to withhold documents and other materials that would reveal “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.1966), aff’d,384 F.2d 979 (D.C.Cir.1967) … Two requirements are essential to the deliberative process privilege: the material must be predecisional and it must be deliberative. SeeArmy Times Publ’g Co. v. Department of the Air Force, 998 F.2d 1067, 1070 (D.C.Cir.1993); Wolfe, 839 F.2d at 774. Both requirements stem from the privilege’s “ultimate purpose[, which] … is to prevent injury to the quality of agency decisions” by allowing government officials freedom to debate alternative approaches in private.

Is a significant public purpose served by protecting communications of executive branch personnel as they debate how best to stonewall Congress, put off media inquiries and spin news reports? One would think not. The deliberative process privilege does not protect evidence of wrongdoing:

[W]here there is reason to believe the documents sought may shed light on government misconduct, “the privilege is routinely denied,” on the grounds that shielding internal government deliberations in this context does not serve “the public’s interest in honest, effective government.” Texaco Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867, 885 (1st Cir.1995); see also In re Comptroller of the Currency, 967 F.2d at 634 (“the privilege may be overridden where necessary … to ‘shed light on alleged government malfeasance’ ”) (quoting Franklin Nat’l Bank, 478 F.Supp. at 582); Wetlaufer, supra, at 852 n. 25, 855 (listing cases).

That is exactly what we have here. Did the Obama administration deliberately lie to Congress and the American people? This is the question to which Barack Obama evidently does not want us to know the answer.

The big picture must always be kept firmly in mind: federal agent Brian Terry was murdered using a gun supplied by the Justice Department under Fast & Furious. And hundreds of Mexican nationals lost their lives to these same weapons, purchased at the behest of the DoJ and paid for taxpayers, and placed in the hands of criminals. By comparison, the “third rate burglary” at the heart of the Watergate scandal was a day in the park. Now the Obama administration is asserting spin-doctor confidentiality over its PR strategy in explaining away a potentially criminal lie to Congress.

It would be nice if the courts would act swiftly so that the public could judge President Obama before he leaves office. But alas, the one competence exhibited by this bunch is delay. The wheels of justice grind slowly, as the old saying goes. But it is important that the public finally gets to understand how this travesty happened, and how it was covered up.

Hat tip: Clarice Feldman