Sen. Grassley has a question:
A spokesman for House Speaker John Boehner said Obama's move "implies that White House officials were either involved in the 'Fast and Furious' operation or the cover-up that followed."
Brush on your Watergaqte and everything after! My quick read of this 2008 Congressional Research review of executive privilege (re: Espy) seems to indicate that the President or his top White House staff need to be involved to assert executive privilege:
Turning to the chain of command issue, the court held that the presidential communications privilege must cover communications made or received by presidential advisers in the course of preparing advice for the President even if those communications are not made directly to the President. The court rested its conclusion on “the President’s dependence on presidential advisers and the inability of the deliberative process privilege to provide advisers with adequate freedom from the public spotlight” and “the need to provide sufficient elbow room for advisers to obtain information from all knowledgeable sources.”101 Thus the privilege will “apply both to communications which these advisers solicited and received from others as well as those they authored themselves. The privilege must also extend to communications authored or received in response to a solicitation by members of a presidential adviser’s staff.”102
The court, however, was acutely aware of the dangers to open government that a limitless extension of the privilege risks and carefully cabined its reach by explicitly confining it to White House staff, and not staff in the agencies, and then only to White House staff that has “operational proximity” to direct presidential decisionmaking.
Well, litigating this should kick the can past November, which is surely the key Admin objective. The CRS has more:
The District of Columbia Circuit’s 2004 decision in Judicial Watch, Inc. v. Department of Justice110 appears to lend substantial support to the above-expressed understanding of Espy. Judicial Watch involved requests for documents concerning pardon applications and pardon grants reviewed by the Justice Department’s Office of the Pardon Attorney and the Deputy Attorney General for consideration by President Clinton.111 Some 4,300 documents were withheld on the grounds that they were protected by the presidential communications and deliberative process privileges. The district court held that because the materials sought had been produced for the sole purpose of advising the President on a “quintessential and nondelegable Presidential power” — the exercise of the President’s constitutional pardon authority — the extension of the presidential communications privilege to internal Justice Department documents which had not been “solicited and received” by the President or the Office of the President was warranted.112 The appeals court reversed, concluding that “internal agency documents that are not solicited and received by the President or his Office are instead protected against disclosure, if at all, by the deliberative process privilege.”113
This seems to favor Grassley, but I am not a Constitutional lecturer like Obama.