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WikiLeaks emails: Clinton aide says Obama had emails from Clinton's private account

Posted by on Oct. 27, 2016 at 6:49 AM
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1 mom liked this

https://www.yahoo.com/news/m/cee63db6-0925-393f-a141-21ea3b4f8a99/ss_wikileaks-emails%3A-clinton.html

President Obama said he heard about Hillary Clinton’s private email server through news reports in March 2015 -- but an email from a Clinton aide around that suggests the president was emailing Clinton on her private address.

In the email, posted by WikiLeaks in the latest batch of emails hacked from Clinton campaign chairman John Podesta’s account, Clinton communications staffer Josh Schwerin emailed a group of top aides noting that Mr. Obama “said he found out HRC was using her personal email when he saw it in the news.”

“We need to clean this up,” Clinton aide Cheryl Mills replied. “He has emails from her - they do not say state.gov.”

The exchange was in reference to an interview Mr. Obama did with CBS News’ Bill Plante, in which the president said he learned about the private email server “the same time everybody else learned it -- through news reports.”

White House Press Secretary Josh Earnest clarified after that interview that Mr. Obama knew about the email address, but “was not aware of the details of how that email address and that server had been set up.”

Clinton’s campaign has not confirmed the authenticity of the hacked emails posted by WikiLeaks, which has posted batches of Podesta’s emails nearly daily in the last few weeks.

Donald Trump said the president should also be investigated. “That’s why he stuck up for Hillary -- because he didn’t want to be dragged in. Because he knew all about her private server, “Trump told Reuters in an interview. “This means that he has to be investigated.”

The State Department said that it had withheld eight email chains that added up to 18 messages between the president and Clinton, the Associated Press reported in January. They will remain confidential under the Presidential Communications privilege.

by on Oct. 27, 2016 at 6:49 AM
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Sweet_Faith
by Ruby Member on Oct. 27, 2016 at 7:03 AM
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https://www.brennancenter.org/analysis/background-executive-privilege


1. THE PRESIDENTIAL COMMUNICATIONS PRIVILEGE

The presidential communications privilege protects from disclosure any communications that are either by the President directly or by his immediate advisors in the Office of the President to the President.  The Supreme Court recognized this privilege in Nixon v. United States and Nixon v. Administrator of General Services.  The Court grounded the privilege in the need for candor in executive branch decision-making and in the supremacy of each branch within its own assigned area of constitutional duties. 

In the Nixon cases, the Supreme Court applied the term presidential communication privilege solely to communications involving the President.  In 1997, the Court of Appeals for the District of Columbia Circuit extended the privilege to include communications made by presidential advisors in the course of preparing advice for the President - even when these communications are not made directly to the President.  For example, communications authored and received in response to a solicitation by a member of a presidential advisors staff fall within the privilege. 

The D.C. Circuit cautioned, however, that not every communication with a presidential advisor would be protected:  [T]he privilege should apply only to communications authored or solicited and received by those members of an immediate White House advisors staff who have broad and significant responsibility for investigating and formulating the advice to be given to the President in the particular matter to which the communications relate.  Hence, communications by advisors when they act in non-advisory capacity are unprotected.  But it seems that vice-presidential communications that implicate policy-making do fall within the privileges bounds.  In a later case, the D.C. Circuit also declined to grant the privilege to persons in the Justice Department who are at least twice removed from the President, but who aid the President in the exercise of his presidential pardon responsibilities. 

Once properly asserted by a qualified person, the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones.  Critically, it covers any factual matter contained in a communication, and in this regard sweeps broader than the deliberative process privilege described below.  Hence, Vice President Cheney has invoked the privilege to refuse disclosure of factual information such as the names of people present at meetings and the cost of those meetings. 

Nevertheless, the presidential communications privilege can be overcome by a sufficient showing of need.  Indeed, in one of the first judicial recognitions of an executive branch secrecy claim, Chief Justice John Marshall endorsed the idea that the privilege is defeasible.  In other words, however well-established the privilege may be, it has never been absolute.  Explaining what must be shown to overcome the privilege, the D.C. Circuit has held a litigant must demonstrate that a document contains important evidence and this evidence is not available with due diligence elsewhere. 

The Supreme Court also strongly suggested the presidential communications privilege must yield whenever a coordinate branchs constitutional role is at stake.  Nixon I concluded that President Nixon had to yield to a subpoena to preserve the function of the courts under Article III, and Nixon II held that Congress could roll back a former presidents privilege in light of the scope of Congress broad investigative power.  Thus, Congress ought to be able to overcome the presidential communications privilege in any instance that it exercises its constitutional powers to legislate and conduct oversight.

Sweet_Faith
by Ruby Member on Oct. 27, 2016 at 7:17 AM

Why did Obama do this unless he had something to hide?

https://fas.org/sgp/crs/secrecy/R42670.pdf

President Obama’s Assertion of Executive Privilege On June 20, 2012, Deputy Attorney General James Cole alerted the House Committee on Oversight and Government Reform that President Obama was asserting executive privilege over documents subpoenaed by the committee during its ongoing investigation of Operation Fast and Furious. This assertion appears to be the first time President Obama has formally invoked executive privilege. Operation Fast and Furious Investigation In January 2011, the Senate Judiciary Committee began investigating the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and DOJ regarding Operation Fast and Furious,186 an ATF operation based in the Phoenix, Arizona field office. ATF whistleblowers alleged that suspected straw purchasers187 were allowed to amass large quantities of firearms as part of longterm gun trafficking investigations.188 As a consequence, some of these firearms were allegedly “walked,”189 or trafficked, to gunrunners and other criminals, and some were smuggled into Mexico.190 In December 2010, two of these firearms were reportedly found at the scene of a shootout, near the U.S.-Mexico border, where U.S. Border Patrol Agent Brian Terry was shot to death.191 Following public reports of the Operation and Agent Terry’s death, Attorney General Eric Holder instructed the DOJ Office of Inspector General to review ATF’s gun trafficking investigations.192 On February 4, 2011, Assistant Attorney General Ronald Weich sent a letter to Senator Grassley, ranking Member of the Senate Judiciary Committee, denying that the ATF had sanctioned or knew of the sale of weapons to straw purchasers who then transported them into Mexico.193

InMarch 2011, the House Committee on Oversight and Government Reform began their own investigation of Operation Fast and Furious. Representative Darrell Issa, Chairman of the Oversight Committee, requested documents and information about the Operation from thenActing ATF Director Kenneth E. Melson. The Department of Justice responded to the request but, according to the committee, “did not provide any documents or information to the Committee by the March 30, 2011 deadline.”194 The following day, the committee issued a subpoena to DOJ and ATF.195 Over the next year, the Oversight and Government Reform Committee held several hearings regarding Operation Fast and Furious,196 and Attorney General Holder testified before that Committee as well as the House and Senate Judiciary and Appropriations Committees. On October 12, 2011, the Oversight and Government Reform Committee issued a second subpoena to Attorney General Holder, after the DOJ informed the committee that it was done producing documents in response to the first subpoena. This subpoena requested all departmental communications and documents “referring or related to Operation Fast and Furious....” At a November 8, 2011 Senate Judiciary Committee hearing, Attorney General Holder conceded that the February 4, 2011 letter from DOJ to Congress contained “inaccurate” information about the depth of knowledge DOJ officials had regarding ATF’s “gun walking” methods.197 The next month, the DOJ formally withdrew the February 4 letter and acknowledged that Operation Fast and Furious was “fundamentally flawed.”198 The letter was accompanied by nearly 1,400 pages of documents and communications that addressed how inaccurate information had been included in the February 4 letter.199 This disclosure deviated from the DOJ’s general position that requests like this Committee’s, “seeking information about the Executive Branch’s deliberations ... implicate significant confidentiality interests grounded in the separation of powers under the U.S. Constitution.”200 Throughout the Committee’s investigation into the scope of DOJ’s knowledge of Operation Fast and Furious, each party has had different opinions about the nature and extent of DOJ’s cooperation in producing subpoenaed documents and communications. The DOJ maintained that it made “extraordinary accommodations”201 in responding to requests about the drafting of the February 4 letter. Furthermore, it stated:  

The Department has substantially complied with the outstanding subpoenas. The documents responsive to the remaining subpoena items pertain to sensitive law enforcement activities, including ongoing criminal investigations and prosecutions, or were generated by Department officials in the course of responding to congressional investigations or media inquiries about this matter that are generally not appropriate for disclosure.202 However, the Committee maintains that despite its flexibility and it being “unfailingly patient,”203 “the Department has refused to produce certain documents”204 and “has fought this committee’s investigation every step of the way.”205 During a committee hearing, Chairman Issa remarked that the Attorney General specifically has “refused to cooperate, offering to provide subpoenaed documents only if the committee agrees in advance to close the investigation. No investigator would ever agree to that.”206 In its contempt committee report, it stated that the DOJ’s refusal to cooperate with congressional investigators was “inexcusable and cannot stand.”207 The Committee’s continued dissatisfaction with the DOJ’s refusal to comply fully with the subpoenas led it to schedule a vote to hold Attorney General Holder in contempt of Congress. While the Attorney General and Chairman Issa met the night before the scheduled vote, they were unable to reach an acceptable accommodation with regard to document disclosure. On the morning of the vote, President Obama formally invoked executive privilege “over the relevant post-February 4, 2011, documents.”208 In defending this assertion, the DOJ noted that: the compelled production to Congress of these internal Executive Branch documents generated in the course of the deliberative process concerning the Department’s response to congressional oversight and related media inquiries would have significant, damaging consequences ... it would inhibit the candor of such Executive Branch deliberations in the future and significantly impair the Executive Branch’s ability to respond independently and effectively to congressional oversight. Such compelled disclosure would be inconsistent with the separation of powers established in the Constitution and would potentially create an imbalance in the relationship between these co-equal branches of the Government.209 In its contempt citation, the Oversight and Government Reform Committee rejected the President’s assertion of executive privilege, calling it “transparently invalid” due to the timing and blanket application of the privilege to all withheld documents.210 The Committee voted 23 to 17 to hold Attorney General Holder in contempt of Congress.211 On June 28, 2012, the full House voted to hold him in contempt of Congress, by a vote of 255 to 67.

Concluding Observations As indicated in the above discussion, recent appellate court rulings cast considerable doubt on the broad claims of privilege posited by the executive branch in the past. Taken together, Espy and Judicial Watch arguably have affected important qualifications and restraints on the nature, scope and reach of the presidential communications privilege. As established by those cases, and until reviewed by the Supreme Court, the following elements should be considered in determining when the privilege can be invoked properly: 1. The communication must be authored or “solicited and received” by a close White House advisor or the President. The judicial test requires that an advisor be in “operational proximity” to the President. This effectively means that the scope of the presidential communications privilege can extend only to the administrative boundaries of the Executive Office of the President and the White House. It appears not to apply to communications or documents wholly produced within an executive department or agency. 2. The presidential communications privilege may be limited to communications relating to a “quintessential and non-delegable presidential power.” Espy and Judicial Watch involved the appointment and removal and the pardon powers, respectively. Other core, direct presidential decision-making powers include the Commander-in-Chief power, the sole authority to receive ambassadors and other public ministers, and the power to negotiate treaties. However, neither case explicitly stated that the presidential communications privilege could only apply to communications and documents relating to “quintessential and non-delegable presidential power[s].” 3. The presidential communications privilege remains a qualified privilege that may be overcome by a showing that the information sought “likely contains important evidence” and cannot be obtained from other sources. The Espy court found an adequate showing of need by the Independent Counsel that overcame the privilege. In Judicial Watch, the court found the presidential communications privilege did not apply, and remanded to the district court to determine if the deliberative process privilege would apply to specific documents. Definitively applying the teachings of Espy and Judicial Watch to current information access disputes between Congress and the executive may be premature because these cases were decided in the context of judicial and FOIA requests for information from the executive branch. In the congressional-executive conflict context, it is clear that the Miers court unequivocally rejected the claim of absolute witness immunity and adopted the Committee’s argument that the Supreme Court’s ruling in Nixon I allows only a qualified constitutional privilege that may be overcome by a proper showing of need. Furthermore, the court recognized that subsequent Supreme Court and

appellate court rulings have reiterated the qualified nature of the privilege.213 However, outside of the district court opinion in Miers, there is no other post- Watergate case law addressing executive privilege in the congressional-executive dispute context. Indeed, the Espy court specifically noted that its narrow holding was limited to the confines of judicial requests for information: Finally, we underscore our opinion should not be read as in any way affecting the scope of the privilege in the congressional-executive context, the arena where conflict over the privilege of confidentiality arises most frequently. The President’s ability to withhold information from Congress implicates different constitutional considerations than the President’s ability to withhold evidence in judicial proceedings. Our determination of how far down into the executive branch the presidential communications privilege goes is limited to the context before us, namely where information generated by close presidential advisers is sought for use in a judicial proceedings, and we take no position on how the institutional needs of Congress and the President should be balanced.214 In the continuing absence of a post-Nixon Supreme Court decision and since Miers never proceeded to a decision on the merits in the appeals court, there is continuing uncertainty as to how executive privilege claims should be analyzed when asserted in response to congressional requests for information.  

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