A dispute over executive privilege appears to be looming in connection with fired Agriculture Department employee Shirley Sherrod's lawsuit against late conservative journalist Andrew Breitbart.
In a letter filed Thursday in U.S. District Court in Washington, a lawyer involved in the case said the Justice Department had advised that it will assert executive privilege to block disclosure of information subpoenaed in the case from USDA and the White House.
"[T]he Government confirmed this week that it intends to assert 'executive privilege' and 'deliberative process privilege' objections as purported grounds for withholding at least some documents and information from both the USDA and the EOP [Executive Office of the President]," wrote Mark Bailen, an attorney for Breitbart employee Larry O'Connor.
However, a Justice Department spokesperson said Thursday afternoon that the government had not reached any conclusions about how to respond to subpoenas served in connection with the case.
"Contrary to what the letter asserts, the department has not made any decisions about what privileges to assert in this ongoing matter," the spokesperson said.
U.S. District Court Judge Richard Leon said at a status hearing on the lawsuit last month that he was fearful that a White House privilege assertion might bog down the case.
"One of my biggest concerns, of course, would be if we found ourselves in a situation where I had to now have litigated in front of me claims of executive privilege that would in some way, you know, slow everything down to a halt," Leon said, after private lawyers involved in the case described their interaction with the government. "I am really happy to hear no one is rattling any swords of that kind and maybe the reason why is because there isn't any of that kind to deal with which would be great. I am not looking for more litigation. I have plenty to do around here."
Leon also suggested he might look skeptically on such a claim in a case where political sensitivities, rather than national security concerns, were at stake. "I am not sure the D.C. Circuit has ever recognized that as a sufficient basis for an executive privilege claim, political embarrassment, to spare the White House political embarrassment," he said.
Sherrod was forced to resign as a state rural development director for USDA in 2010 after Breitbart posted video clips online from a speech she gave earlier in the year at an NAACP event. The videos appeared to suggest that Sherrod was a racist. Within a matter of hours, Agriculture Secretary Tom Vilsack dismissed her, acting in consultation with the White House.
However, allegations soon emerged that Breitbart had mischaracterized Sherrod's speech. He denied doing so and said he did not have access to the entirety of the USDA official's remarks. When the full video of Sherrod's remarks became public, her remarks appeared to many to be less inflammatory than initially portrayed. Within two days of forcing Sherrod out, the administration reversed course, with Vilsack and even President Barack Obama himself apologizing and encouring Sherrod to take another job at USDA.
Sherrod did not take the position, but in 2011 filed a defamation lawsuit against Breitbart, O'Connor and their then-unidentified source for the video of Sherrod.
Breitbart died unexpectedly in March 2012. Sherrod's lawyers later moved successfully to substitute Breitbart's wife, Susannah Bean Breitbart, as legal representative for her late husband.
It's not clear precisely what information is being sought from the USDA or the White House, but Bailen's letter indicates that both sides in the case have subpoenaed records from the Agriculture Department. In addition, O'Connor has subpoenaed the White House, seeking information about Sherrod's termination and subsequent job offer as well as Obama's call apologizing to Sherrod.
Whether Leon is correct about the state of the law on executive privilege is debatable. In 1997,the D.C. Circuit ruled in a case involving former Agriculture Secretary Mike Espy (which implicated no national security concerns) that executive privilege applies to presidential decisions about hiring and firing of executive branch appointees, which the court called "a quintessential and nondelegable Presidential power."
"Confidentiality is particularly critical in the appointment and removal context; without it, accurate assessments of candidates and information on official misconduct may not be forthcoming," the D.C. Circuit panel wrote. It turned down some of Independent Counsel Donald Smaltz's request for records on such issues, but left the door open to giving the prosecutor more information if he could show greater need for it.
CORRECTION (Friday, 1:52 A.M.): The initial version of this post referred incorrectly to the business relationship between Breitbart and O'Connor.
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