Like the president, the vice president is a constitutional officer. His office is not created by Congress the way departmental heads and other Senate-confirmed officials are. He is completely removed from congressional oversight and shares the president's status as being above ordinary government operations.
Some issues are more protected by executive privilege than others. According to the federal courts, the most-protected are diplomatic secrets, military matters and "sensitive national security interests." You don't have to be a constitutional lawyer to guess rightly that CIA interrogations of terrorists captured during wartime fit neatly into the third category.
The courts also have held that former presidents retain executive privilege after they leave office (although the privilege's strength is somewhat diminished), so Mr. Cheney can continue to assert it.
If the Justice Department wants to press this issue, Mr. Holder would have no choice but to take Mr. Cheney to court seeking an order for him to answer the prosecutor's questions. Under current precedent, the odds are heavily in favor of Mr. Cheney's winning.
Dick Cheney has always been a tough customer. He should be one now and help put an end to Team Obama's latest political stunt.
Ken Klukowski
Ken Klukowski is a bestselling author and Townhall’s legal contributor covering the U.S. Supreme Court, and a fellow with the Family Research Council, American Civil Rights Union, and Liberty University School of Law.