Obama Asserts Executive Privilege

 

President Obama has invoked “executive privilege” to head off a contempt of Congress citation against Eric Holder for failing to produce documents relating to operation “Fast and Furious,” the bizarre DOJ initiative to send thousands of firearms to Mexican drug cartels to see what they would do with them (kill people, as it happens). 

Over on the Member Feed, ConservativeWanderer helpfully reminds us of the NYT editorial blasting Bush for invoking the privilege to block congressional subpoenas over the firing of 8 federal prosecutors. But it wasn’t just the Times, then-Senator Barack Obama also attacked Bush for “try [ing] to hide behind executive privilege every time there’s something a little shaky that’s taking place.”

Don’t hold your breath for a NYT editorial against the Obama/Holder privilege, but a court challenge may be in order. Under existing precedent (including the famous US v. Nixon), executive privilege is not impregnable. Heritage’s Todd Gaziano has a good post highlighting the relevant law, which I summarize: 

First, executive privilege cannot be invoked at all if the purpose is to shield wrongdoing – that’s what did Nixon in. Second, Congress is entitled to at least some documents and other information that indicate who the ultimate decision maker was for this disastrous program and why these decisions were made. Third, even a proper invocation of the privilege must yield to other branches’ need for information in some cases. And lastly, the President is required when invoking executive privilege to try to accommodate the other branches’ legitimate information needs in some other way.

If Democrats contend that executive privilege must yield to Congress’s desire to investigate the firing of 8 prosecutors, how can they argue that Congress does not have an even stronger need to know the facts about Fast and Furious? Who knows, but they obviously will make that argument. House Republicans have to challenge the administration on this — it’s the only hope of getting Fast and Furious the infamy it deserves.

There are 24 comments.

  1. Cylon Inactive

    Shannon Coffin thinks there could be a reasonable basis for at least part of Obama’s executive privilege claim.

    the president invokes … “deliberative process” privilege. This …privilege … protects pre-decisional communications within the executive branch. The theory behind the privilege is that government decision-makers should not live in a fishbowl, and that candid, and sometimes unpopular, advice may be needed to make the best decisions. Exposing those decisions to the scrutiny that public document dumps entails … would necessarily chill internal deliberations …

    the president… concluded that the deliberative process privilege applied to purely internal Department of Justice deliberations regarding how the department should respond to … congressional … and media inquiries.

    …Notwithstanding the lack of proximity to the president, there is a reasonable basis for invoking the privilege with respect to pre-decisional communications involving how the Justice Department should respond to congressional inquiries. There would be separation-of-powers problems if Congress could readily peel back the curtain from any executive-branch agency to see which agency employee said what to whom about any question that a congressional committee might pose to the agency. 

    • #1
    • June 20, 2012, at 11:47 AM PDT
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  2. BrentB67 Inactive

    Related topic question for Mr. Freedman or other Ricoteers:

    What is the impact of the contempt vote? If AG Holder is found in contempt does it have any meaning or does AG Holder just give Congress the proverbial one finger salute to let them know he thinks they are number 1 and go on down the road?

    Thank you.

    • #2
    • June 20, 2012, at 11:59 AM PDT
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  3. flownover Inactive

    executive privilege cannot be invoked at all if the purpose is to shield wrongdoing

    Okay, I get that. But how does it apply if the purpose is to shield dangerous stupidity pushing an agenda of limiting the Second Amendment ? 

    • #3
    • June 21, 2012, at 1:04 AM PDT
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  4. River Inactive

    The perfect blunder at the perfect time to help Americans see and understand just how destructive the Occupier-in-Chief and his minions and party hacks are.

    • #4
    • June 21, 2012, at 1:16 AM PDT
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  5. River Inactive

    Partly true, but his base is shrinking and could shrink further. You can bet the Clinonistas are squirming turning red in the face at this corruption and ineptitude. It endangers everybody.

    BrentB67: Gentlemen – Thank you for the thoughtful comments. Sounds like the one finger salute from AG Holder. There is a danger in pressing this too hard.

    Obama can do no wrong to his base so he gets a pass from them and every news bite on this topic is one that is not commenting on the economy. · 46 minutes ago

    • #5
    • June 21, 2012, at 1:18 AM PDT
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  6. DocJay Inactive
    Southern Pessimist: I am tempted to watch NBC Nightly News tonight to see how they cover this. On the other hand, I may not be that desperate for entertainment. · 2 minutes ago

     It’s like staring at the sun and being shelled at the same time.

    • #6
    • June 21, 2012, at 1:18 AM PDT
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  7. DocJay Inactive
    BrentB67: Gentlemen – Thank you for the thoughtful comments. Sounds like the one finger salute from AG Holder. There is a danger in pressing this too hard.

    Obama can do no wrong to his base so he gets a pass from them and every news bite on this topic is one that is not commenting on the economy. · 49 minutes ago

    There is a danger in not pressing this far enough as well. There are enough people overtly upset about this issue already and failure to dispense justice has its own backlash.

    • #7
    • June 21, 2012, at 1:21 AM PDT
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  8. Adam Freedman Contributor
    Adam Freedman Post author
    DocJay
    BrentB67: Gentlemen – Thank you for the thoughtful comments. Sounds like the one finger salute from AG Holder. There is a danger in pressing this too hard.

    Obama can do no wrong to his base so he gets a pass from them and every news bite on this topic is one that is not commenting on the economy. · 49 minutes ago

    There is a danger in not pressing this far enough as well. There are enough people overtly upset about this issue already and failure to dispense justice has its own backlash. · 1 minute ago

    I see both sides, but on balance I think the House should press this. Romney needs to keep pressing on the economy 24/7, but the news media needs other topics to cover now and then.

    • #8
    • June 21, 2012, at 1:34 AM PDT
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  9. James Gawron Thatcher

    Adam,

    As usual you know the law better than I. However from a tactical political point of view I think we are ahead and scoring points. If there wasn’t anything to hide why would the White House invoke executive privilege? Any constitutional legal answer that holds water (not the Obama administration’s long suit) will undoubtably be too complex for ready understanding by the voters. Fast and Furious is very understandable and a huge negative.

    If the House Committee justs keeps pounding away Romney could stay on the economic message. It’s a political loss for Obama even if he can maintain the privilege wall.

    Who knows what else may shake loose.

    Regards,

    Jim

    • #9
    • June 21, 2012, at 1:49 AM PDT
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  10. Wylee Coyote Member
    Adam Freedman: But it wasn’t just the Times, then-Senator Barack Obama also attacked Bush for “try [ing] to hide behind executive privilege every time there’s something a little shaky that’s taking place.”

    Pot, meet kettle.

    Wait, is that racist? I can never keep track. :(

    • #10
    • June 21, 2012, at 2:07 AM PDT
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  11. Jager Member
    flownover: “executive privilege cannot be invoked at all if the purpose is to shield wrongdoing”

    Okay, I get that. But how does it apply if the purpose is to shield dangerous stupidity pushing an agenda of limiting the Second Amendment ? · 1 hour ago

    The problem here is that a Federal Agent and many Mexican civilians were killed with Fast and Furious weapons. There should be no executive privilege in determining who knew what and when.

    • #11
    • June 21, 2012, at 2:24 AM PDT
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  12. DutchTex Inactive

    Even if Romney himself doesn’t use it, this political ad practically writes itself. I hope some group takes advantage.

    Adam Freedman: But it wasn’t just the Times, then-Senator Barack Obama also attacked Bush for “try [ing] to hide behind executive privilege every time there’s something a little shaky that’s taking place.”
    • #12
    • June 21, 2012, at 2:25 AM PDT
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  13. Mel Foil Inactive
    DutchTex: Even if Romney himself doesn’t use it, this political ad practically writes itself. I hope some group takes advantage.
    Adam Freedman: But it wasn’t just the Times, then-Senator Barack Obama also attacked Bush for “try [ing] to hide behind executive privilege every time there’s something a little shaky that’s taking place.”

    It doesn’t help Romney much, if at all. It’s complicated, and most likely won’t be resolved before the election. Romney has to stick to economic issues. That’s what America is losing sleep over.

    • #13
    • June 21, 2012, at 2:34 AM PDT
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  14. DutchTex Inactive

    I don’t think it has to be. A simple shot of Obama making this statement, and then several shots of headlines regarding Fast and Furious, then headlines stating that he invoked executive privilege. That’s pretty straightforward to anyone watching. Especially those who don’t pay attention.

    I would do something like that while running other ads regarding all his broken promises/hypocritical statements. Make it a theme. 

    Mel Foil
    DutchTex: Even if Romney himself doesn’t use it, this political ad practically writes itself. I hope some group takes advantage.
    Adam Freedman: But it wasn’t just the Times, then-Senator Barack Obama also attacked Bush for “try [ing] to hide behind executive privilege every time there’s something a little shaky that’s taking place.”

    It doesn’t help Romney much, if at all. It’s complicated, and most likely won’t be resolved before the election. Romney has to stick to economic issues. That’s what America is losing sleep over. · 6 minutes ago

    • #14
    • June 21, 2012, at 2:53 AM PDT
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  15. DutchTex Inactive

    I’m with Ramesh on this one:

    “I think voters expect presidents to be able to deal with a wide range of issues. Romney could talk about the executive order, or about Fast and Furious, without coming across as someone who obsesses about these issues to the exclusion of the economy.”

    • #15
    • June 21, 2012, at 2:54 AM PDT
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  16. Profile Photo Member

    The sheer enormity of the operation has long been held below the radar by the mainstream press. How will it sit with the voters BHO has just targeted with his youth amnesty, to learn that large numbers of fellow Latinos lost their lives to a scheme whose origins he now acts to conceal?

    The true facts ought to be widely discussed.

    • #16
    • June 21, 2012, at 3:19 AM PDT
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  17. Profile Photo Member

    Regardless of judicial interpretation of executive privilege, why shouldn’t the privilege be permitted to protect wrongdoing? The attorney-client privilege can protect wrongdoing. It cannot be used to further serious wrongdoing, but it can certainly be used to conceal communications about past wrongdoing. To take an egregious example, an accused murderer might admit his full guilt to his lawyer, but the lawyer need never disclose that critical fact. Why should the executive privilege be weaker than the attorney-client privilege?

    • #17
    • June 21, 2012, at 7:12 AM PDT
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  18. Tommy De Seno Contributor

    I recall something about a promise of the most transparent government in history.

    • #18
    • June 21, 2012, at 12:02 PM PDT
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  19. Adam Freedman Contributor
    Adam Freedman Post author
    Cylon: Shannon Coffin thinks there could be a reasonable basis for at least part of Obama’s executive privilege claim.

    the president invokes … “deliberative process” privilege. This …privilege … protects pre-decisional communications within the executive branch. 

    Well, if it was clear-cut, Obama could have invoked the privilege months ago, when Congress first began demanding the documents. Deliberative process won’t apply if the purpose of the privilege is to shield wrongdoing, which I think is likely. And even if some of the documents can be withheld on the basis of deliberative process, it isn’t credible to say that Congress is not entitled to a single one of the documents they’ve requested.

    • #19
    • June 21, 2012, at 12:15 PM PDT
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  20. Jager Member
    BrentB67: Related topic question for Mr. Freedman or other Ricoteers:

    What is the impact of the contempt vote? If AG Holder is found in contempt does it have any meaning or does AG Holder just give Congress the proverbial one finger salute to let them know he thinks they are number 1 and go on down the road?

    If he is found in contempt by the Oversight Committee it is referred to the full House. If the House votes to find him in contempt the matter is referred to the US Attorney for the District of Columbia. This is a criminal issue that holds some small fine and something like a maximum one year in prison. 

    • #20
    • June 21, 2012, at 12:17 PM PDT
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  21. Adam Freedman Contributor
    Adam Freedman Post author
    BrentB67: Related topic question for Mr. Freedman or other Ricoteers:

    What is the impact of the contempt vote? If AG Holder is found in contempt does it have any meaning or does AG Holder just give Congress the proverbial one finger salute to let them know he thinks they are number 1 and go on down the road?

    Thank you. · 15 minutes ago

    The administration does not believe it is in contempt because of “executive privilege” and Congress has no independent means to enforce a contempt order. I believe that Congress would either have to take Obama to court or demand the appointment of a special prosecutor.

    • #21
    • June 21, 2012, at 12:17 PM PDT
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  22. Adam Freedman Contributor
    Adam Freedman Post author
    Jager
    BrentB67: Related topic question for Mr. Freedman or other Ricoteers:

    What is the impact of the contempt vote? If AG Holder is found in contempt does it have any meaning or does AG Holder just give Congress the proverbial one finger salute to let them know he thinks they are number 1 and go on down the road?

    If he is found in contempt by the Oversight Committee it is referred to the full House. If the House votes to find him in contempt the matter is referred to the US Attorney for the District of Columbia. This is a criminal issue that holds some small fine and something like a maximum one year in prison. · 0 minutes ago

    I don’t think the US Attorney can prosecute the case if the President has declared that privilege applies. That’s why I think you’d need a special prosecutor.

    • #22
    • June 21, 2012, at 12:19 PM PDT
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  23. BrentB67 Inactive

    Gentlemen – Thank you for the thoughtful comments. Sounds like the one finger salute from AG Holder. There is a danger in pressing this too hard.

    Obama can do no wrong to his base so he gets a pass from them and every news bite on this topic is one that is not commenting on the economy.

    • #23
    • June 21, 2012, at 12:30 PM PDT
    • Like
  24. Southern Pessimist Member

    I am tempted to watch NBC Nightly News tonight to see how they cover this. On the other hand, I may not be that desperate for entertainment.

    • #24
    • June 21, 2012, at 12:55 PM PDT
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