On Fox News this morning, senior judicial analyst Andrew Napolitano claimed that President Obama's assertion of executive privilege in response to a congressional subpoena of Justice Department documents related to the ATF's failed Operation Fast and Furious is only valid if he was "personally involved in making decisions" regarding that case. But President Bush previously invoked executive privilege in response to a subpoena of internal DOJ documents.
NAPOLITANO: Executive privilege protects communications with the president, the human being of the president, not with people that work for him and the Justice Department. ... If the attorney general sat down and discussed it with the president, he probably doesn't want the Congress and the public to know that, because we know of the awful events that occurred as a result of the Fast and Furious escapade. But we also know that executive privilege only pertains to military, diplomatic, and sensitive national security matters. Now, was fighting the drug gangs at the border a sensitive national security matter? And, if so, was the President of the United States of America personally involved in making decisions as to how to conduct that fight? If that's the case, this has reached a different level and we now know why the attorney general has ferociously defended these documents.
In December 2001, President Bush invoked executive privilege in response to a subpoena from congressional investigators seeking deliberative DOJ communications related to both the FBI's use of organized crime informants and President Clinton's fundraising efforts. The New York Times reported:
President Bush invoked executive privilege today for the first time in his administration to block a Congressional committee trying to review documents about a decades-long scandal involving F.B.I. misuse of mob informants in Boston. His order also denied the committee access to internal Justice Department deliberations about President Bill Clinton's fund-raising tactics.
A United Press International report on Bush's decision says that the executive privilege claim applied to "17 sets of documents related to the FBI investigations and informants" as well as "a set of documents related to the decision not to pursue an independent counsel to investigate Clinton-era campaign finance violations."
In testimony before Congress, Justice Department criminal division chief of staff Michael Horowitz made clear that the documents in question were deliberative DOJ documents, not documents pertaining to the president or the White House:
Let me stress at the outset that the department fully understand that the committee's interest in these documents is based upon its concern about the integrity of the department's actions in prosecuting or declining to prosecute particular individuals. We all want to be sure that such decisions are based upon the evidence in the law, free from political and other improper influences. Indeed, it is for that very reason, to protect the integrity of federal prosecutive decisions, that the attorney general, supported by the president, has declined to produce the internal deliberative memoranda you seek.
During the same hearing, Horowitz explained that in lieu of providing the internal DOJ deliberative documents, the Justice Department would be willing to provide briefings on those documents - the same offer Attorney General Eric Holder says Oversight chair Darrell Issa rejected in favor of seeking to hold him in contempt of Congress.