EXECUTIVE PRIVILEGE: IT'S BEEN CLAIMED FOR NON-PRESIDENTIAL COMMUNICATIONS AND ON BEHALF OF PREVIOUS PRESIDENTS

I'm in somewhat over my head talking about the Obama administration's assertion of executive privilege regarding internal Justice Department documents in the Fast and Furious case, but I don't buy the notion that there's something unprecedented about asserting this privilege for documents that don't involve direct communication with the president doing the asserting:

"How can the president assert executive privilege if there was no White House involvement? How can the president exert executive privilege over documents he's supposedly never seen?" [Senator Charles] Grassley said in a statement.

Well, in 2001, less than a year after his inauguration, President Bush claimed executive privilege for FBI documents in a decades-old scandal:

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.

The chief of staff of the Justice Department's criminal division, Michael Horowitz, told Congress that the documents in question were, in the words of Media Matters, "deliberative DOJ documents, not documents pertaining to the president or the White House."

I'd also note that in 1986, President Reagan invoked executive privilege after nominating William Rehnquist to be chief justice of the Supreme Court -- but the documents Reagan wanted to shield had been generated nearly two decades earlier:

President Reagan refused this evening to allow members of the Senate to see internal memorandums that William H. Rehnquist wrote from 1969 to 1971, when he was a high-ranking Justice Department official in the Nixon Administration....

The documents dealt with civil rights, civil liberties, wiretapping and surveillance of radical groups....

Reagan eventually backed down in that case -- but please note that he was attempting to protect documents that weren't even from his administration.

I'm not offering an opinion as to the appropriateness of this practice. I'm just saying that previous presidents have had a fairly flexible view as to when the privilege applies. So I'd say that what Obama is doing is hardly unprecedented, much less totalitarian.