Fannie Mae-No Politics (FNMA)

[obiterdictum]

Sorry for the late reply. Have been traveling all day.

1. It was my understanding that all 11,000 documents had presidential privilege invoked on it, but only a handful of them are up for review, which is where the smaller 56 number came from.

But if I'm wrong, I'd love to be corrected by some evidence.

The Defendants state in a petition for a Writ of Mandamus that there are 12,000 documents that are assigned one or more privileges.

...there remain approximately 12,000 documents over which the government has claimed one or more of the deliberative process, presidential communications, and bank examination privileges. See: http://gselinks.com/Court_Filings/Fairholme/17-104-0002.pdf - page 5

So all of the documents are not assigned presidential communications privilege. Compared to the vast majority, very very few are reported to be logged in that manner.

2. The president has refused to release 11,000 documents.

There is no evidence that President Obama has personally refused to release 11,000 documents.

3. Doesn't that inherently invoke presidential privilege?

Though a sitting President can personally invoke presidential communication privilege to withhold documents from Congress or the Judiciary viva voce or by other means, a President does not need to personally do so. There are legal precedents that allow presidential communication privilege to be legally assigned to documents that fit precedential criteria, though there is no absolute guarantee that such an invocation will be upheld in court since presidential communication privilege is qualified and is not inviolate.

For example, note the presidential communications privilege definition below that was given by the US Court of Appeals, D.C. Circuit, In re SEALED CASE. 121 F.3d 729, 326 U.S.App.D.C. 276 - http://www.slksf.com/pdfs/In_re_Sealed_Case.pdf

Based on our review of the Nixon cases and the purpose of the presidential communications
privilege, we conclude that this privilege extends to cover communications which do not themselves
directly engage the President, provided the communications are either authored or received in
response to a solicitation by presidential advisers in the course of gathering information and
preparing recommendations on official matters for presentation to the President. The privilege also
extends to communications authored or solicited and received by those members of an immediate
White House advisor's staff who have broad and significant responsibility for investigating and
formulating the advice to be given to the President on a particular matter.

The four of 56 items assigned by the Defendants and logged with presidential communications privilege are as follows:

15 - M. Stegman, T. Bowler, J. Parrott, B. Deese, M. Miller, and S. Valverde
TO: M. Stegman, T. Bowler, J. Parrott, B. Deese, M. Miller, J.M. J. Eberly, and Exec Sec Staff on 5/2/2012
CC: M. Patterson, N. Wolin, J. LeCompte, J. Parrott, M. Miller, and M. Stegman
“Memorandum reflecting confidential communication
from senior White House advisors to the President
regarding housing policy ideas and initiatives”

17 - J. Parrott and J. Foster
TO: J. Parrot and J. Foster on 7/29/2011
“Emails reflecting the exchange of information, views, and advice between Treasury officials and White House staff with broad and significant responsibility for investigating and formulating advice for consideration and direction by the President regarding housing finance issues”

19 - M. Stegman on 6/18/2012
“Memorandum reflecting confidential communication from senior White House advisors to the President regarding housing policy ideas and initiatives”

21 - G. Sperling, T.Geithner, N. Wolin, and M. Miller
TO: T. Geithner, N. Wolin, M. Stegman, S. Gandhi, A. Gerety, B. Hester, M. Miller, C. Gibson, C. Amir-Mokri, and S. Chisolm on 3/12/2012
CC: B. Deese
“Email reflecting the exchange of information, views, and advice between Treasury officials and senior White House advisors for consideration and direction by the President regarding housing finance issues”

Source: http://gselinks.com/Court_Filings/Fairholme/13-465-0340.pdf

4. I am unaware whether there is a specific procedure for invoking it or just a refusal to release is enough.

Presidential communications privilege can be invoked by a President's refusal to release documents while stating, via one means or another, personally or through an assigned mediator, that the documents sought after fall under the presidential communications privilege. Attorneys can invoke presidential communications privilege on the basis of criteria given above from In re SEALED CASE. Communications between US counsel, the President and any of the advisors that may have occurred in getting this done is unknown.

Examples of Presidential Assertion of Executive Privilege through Surrogates
See: https://georgewbush-whitehouse.archives.gov/news/releases/2007/06/20070628-2.html
http://graphics8.nytimes.com/packages/pdf/national/20120621-holder/062011Letter.pdf