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Fast and Furious: Holder moves to appeal ruling
Story here. To translate from the legalese:
The trial court refused to dismiss the suit, seeking records, brought by Issa's committee. Holder's attorneys had objected on grounds of Executive Privilege, which traditionally shields documents giving advice rather than revealing facts. "This is why we should run guns to Mexican drug cartels" would be protected, but "The Arizona US Attorney is running guns to the cartels" would not be.
Normally, you can't appeal an "interlocutory" ruling, one made during the case, but which is not a final judgment. Denial of a motion to dismiss fits under that. Appeals courts want to see the case when it is finished, all packaged up, as it were.
There are a few ways around that. One is to ask the appeals court to order the trial judge to make a particular ruling -- but that is utterly within its discretion, and it can deny the motion without any reason, and without giving one. The other is to ask the trial court to certify a purely legal question to the appeals court; "tell me what the law is, so I can proceed." I haven't seen that done in a purely Federal action (I've seen it done where a Federal court certifies an issue of State law to the State Supreme Court, and asks it to interpret its law for guidance of the Federal court). That's what is being done here.
· BATFE
One notes when reading Article II that the language used in "shall have" when referring to the powers that are delegated from We the People to the President. There is a conspicuous absence of any allowance for "executive privilege". EP is a claim made by the executive that finds absolutely no basis in the Constitution.
Factually speaking, the power to have secrets is ONLY granted to Congress and only with respect to its journals. Since the Framers saw it necessary to grant secrecy power to Congress and withheld all secrecy power from the President, the concept of executive privilege is imaginary. The President in no way has any powers not delegated through a direct grant in the Constitution regardless of how any of the branches of government see it.