Judge Napolitano commented on today’s Studio B on the president’s invocation of executive privilege regarding the concealment of documents involved in the botched ‘Fast and Furious’ gunrunning operation.
“There’s actually a constitutional clash here,” Napolitano stated, saying that the Supreme Court resolved it once before in a very famous case called the United States vs. Nixon in which the then-president’s documents were subpoenaed and he refused to comply.
There are ways to tell if executive privilege applies to the said documents. The first way, according to Napolitano, is “if the conversations about the documents were intended to advise the president on his duties as president … if they’re talking about the Yankees, that’s not covered.”
The other applicable documents would be those involving a military secret, diplomatic secret or national security secret. “Those are the only three categories of permissable executive privilege … if it doesn’t fall into one of those three categories, and it’s difficult to find how this gunrunning thing could be [one of those three things], then the privilege doesn’t apply,” he said, defining a “privilege” as quite literally being the right of the president to keep the truth from the courts or the Congress.