In a letter to President Bush dated just yesterday, June 19, Attorney General Michael Mukasey wrote that, "[t]he Office of Legal Counsel is satisfied that the subpoenaed documents fall within the scope of executive privilege."
Mukasey asserts executive privilege based on the subpoenaed documents threat to presidential decision making and the volume of documents (over 30,000 pages) already provided to the committee:
Addressing the subpoenaed documents in their entirety, I believe that publicly releasing these deliberative materials to the Committee could inhibit the candor of future deliberations among the President's staff in the EOP and the deliberative communications between the EOP and Executive Branch agencies, particularly deliberations concerning politically charged issues.
Johnson and Susan Dudley, Administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget both relied on Mukasey's analysis in asserting executive privilege. Representing Dudley, Director Jim Nussle attached Mukasey's decision in his letter to the committee, along with a snippy reiterative response:
It is curious that you are now unsatisfied to have received "thousands of pages" of documents from OIRA in advance of your May 20 hearing--more than 7500--including the communications directly between OIRA and EPA that identify explicitly the role played by the EOP in the process. Without providing any legitimate justification or demonstration of need, you demand 1,735 pages of internal deliberative documents from the President's EOP staff at OIRA, and 221 pages of communications between the President's staff at OMB and other EOP offices. In order to preserve the confidentiality that is essential to the ability of current and future Presidents to receive candid analyses, advice and recommendations from EOP staff, and for the reasons set forth in the attached letter from the Attorney General, I have been authorized to report to the Committee the President's decision to assert Executive Privilege with regard to the documents that have been withheld by OIRA. Accordingly, we will not be providing them.
Representing Johnson, Deputy Administrator Chris Bliley's letter asserting Executive Privilege has a little less attitude, but still admonished the Oversight Committee:
In a further effort to accommodate the Committee' s interests, we will be providing an additional 71 documents today, including redacted copies of documents relating to communications with the White House. In sum, less than 25 out of over 10,000 responsive documents are being withheld in their entirety. In light of these substantial accommodations, the Committee's threat of contempt and failure to recognize the need to balance the interests of the two co-equal branches of government is disappointing.
Waxman wasn't so pleased to get the run-around from the White House again, stating, "I would hope and expect this administration would not be making this assertion without a valid basis for it. But to date, I have not seen a valid basis for their executive privilege, but I do want to give extra time to review the matter more fully before we proceed further."
Full video of Waxman's thoughts on the Bush administrations overuse of executive privilege is below: