Presidential Catch 22

Matt Renner | White House Wants First Crack at RNC Emails:

According to Peter Shane [my Yale LS classmate and class secretary who refuses to advertise my blog to our class], an Ohio State University law professor who specializes in separation of powers issues, executive privilege is 'subject to balancing,' meaning that the right to withhold information from Congress is not absolute and would have to be determined by the Supreme Court. Documents or communications regarding state secrets or national security are considered to be the 'most privileged,' and the hardest for Congress to gain access to. State secrets are not at issue in this situation. Instead, the White House would rely on the less-weighty 'Presidential Privacy Privilege,' which is meant to allow presidential advisers to communicate freely, without fear of their statements being made public.

Shane says that the president's privacy privilege is outweighed in this case by the Congressional need to conduct investigations. Also, a claim to executive privilege in this case could backfire as it would be an admission that privileged communications were made using an email system under the control of an outside agency. According to Shane this would be a violation of the Presidential Records Act.

'This is the Catch-22 the Bush administration is caught in,' Shane said. 'If they say that the subject matter of these communications makes them susceptible to executive privilege claims, then they should have been been sent through official government channels, not through unofficial emails. If these communications are of this kind, the Bush administration is clearly in violation of the Presidential Records Act.