Very smart commenter at TPMmuckraker

This guy seems to know what he's talking about. You have to do a lot of scrolling to find his posts, but it's worth it.

Yes, and there's a rule about that as well: ORCON, it's illegal go classify evidence of illegal activity.

Which takes us back to the dispute over Cheney's assertion that "that" EO "didn't apply." The "EO that did or didn't apply" contains the rules on ORCON.
It doesn't matter whether the "_EO_" did or didn't apply, the _32 CFR 2800_ does apply: It has OVP name on it. It can be enforced through prosecutions; and that CFR _does_ list EOs which _do_ apply.

Whether the _standards listed_ does or does not apply is meaningless; the issue is whether the _requirement_ regardless which standard is used, ignored, or explained away is _legally enforceable_. Arguing over which EO does or doesn't apply is a distraction from [a] the ORCON requirements which prohibit classification of that data; and [b] the data which _must_ be protected per the applicable CFR: 38 CFR 2800.
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This takes us back to the RNC e-mails. Recall, the White Hose legal counsel did something very stupid:
1. Determined that the information would be protected by privilege
2. Created an illegal backup database
3. Destroyed that database

Here's the problem, and why we know legal counsel was involved: Once someone assumes a database will "never" see the light of day; they have a choice: Do they talk candidly; or do they use that "to be forever hidden" database to hide illegal activity?

Here's how we know something very important: Once the evidence of illegal activity was _known_ to be revealed; and that _claims_ of executive privilege would _fail_, then they had a problem: The backup e-mail could be detected; and the _existence_ and content of that backup e-mail could be breached.
In other words, one does not destroy evidence in the RNC e-mails unless they believe that privilege would fail; but then contradict themselves and say, "But we have executive privilege". That defies reason. Again, if the _expectation_ of privilege -- going forward from time of creation -- were real, then there would have been [wait for it] [a] no reason to have a backup systems; no reason to have an e-mail system that violated the law; and no reason to _destroy_ the very thing that would "forever" enjoy a shield of privilege.
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Rule: Privilege isn't a power: It's a _claim_ that the _court_ doe snot have to recognize. If a claim of privilege has been abused; or adverse inferences _about missing data_ suggest that the evidence was _illegally destroyed_, the claim of privilege is one that the court is _not required_ to recognize. A defendant can do things that will make the claim meaningless, without effect, or irrelevant: By disclosing that information in an e-mail, as Miers did with the DoJ e-mail.
Executive privilege isn't something the _court_ is required to recognize. It can be claimed, asserted, and demanded as a "right" but that's meaningless: It is a _court recognized_ claim that the court -- for whatever reason it chooses -- can refuse.

ETA: One of the Kos posters went through and pulled all of Anon's posts into one diary.