June 27, 2012 2 Comments
Everyone is obsessing over the Obamacare ruling expected to be issued tomorrow. But there’s another interesting event scheduled to take place tomorrow in Washington. The House of Representatives is going to vote to hold Attorney General Eric Holder in contempt of Congress. This of course stems from his refusal to hand over documents in the Fast and Furious scandal. Rep. Darrell Issa recently sent a letter to the President concerning his use of executive privilege. It’s an important letter that properly details the role of executive privilege and why it either doesn’t apply in this case or shows us that there’s something more going on here, perhaps a real large scale scandal or coverup.
Issa notes the history of executive privilege:
Courts have consistently held that the assertion of the constitutionally-based executive privilege — the only privilege that ever can justify the withholding of documents from a congressional committee by the Executive Branch — is only applicable with respect to documents and communications that implicate the confidentiality of the President’s decision-making process, defined as those documents and communications to and from the President and his most senior advisors. Even then, it is a qualified privilege that is overcome by a showing of the committee’s need for the documents. The letters from Messrs. Holder and Cole cited no caselaw to the contrary.
This is important because historically executive privilege only applied to communications made to the President concerning decisions he has to make. In short, the privilege allows the President’s advisers to provide him with advice without fear that an investigation will be held which pins the blame on bad decisions the President makes on them. It frees the President’s advisers to speak freely, that’s the point of the privilege.
With that in mind of course it makes one wonder whether Obama received advice from advisers on Fast and Furious long before he allegedly read all about it in the newspapers. Issa details two possible conclusions one could reach concerning Obama’s executive privilege claim:
Accordingly, your privilege assertion means one of two things. Either you or your most senior advisors were involved in managing Operation Fast & Furious and the fallout from it,including the false February 4, 2011 letter provided by the Attorney General to the Committee,or, you are asserting a Presidential power that you know to be unjustified solely for the purpose of further obstructing a congressional investigation. To date, the White House has steadfastly maintained that it has not had any role in advising the Department with respect to the congressional investigation. The surprising assertion of executive privilege raised the question of whether that is still the case.
So which is it, was Obama involved in Fast and Furious from the beginning and now he’s trying to protect his advisers or is he simply trying to obstruct a Congressional investigation. There is of course a third option, lawless Obama is trying to expand executive privilege to the point where the executive branch does not have to respect or respond at all to the legislative branch despite the latter’s Constitutional authority to oversee the executive.
The claim of privilege is even more bizarre in light of Holder’s offer to Issa made on June 19th. As Issa details:
During the June 19th meeting, the Attorney General stated he wanted to “buy peace.” He indicated a willingness to produce the “fair compilation” of post-February 4th documents. He told me that he would provide the “fair compilation” of documents on three conditions: (1) that I permanently cancel the contempt vote; (2) that I agree the Department was in full compliance with the Committee’s subpoenas, and; (3) that I accept the “fair compilation,” sight unseen.
Issa of course rejected this offer, largely because he didn’t want to declare Holder in compliance without first seeing the documents. The very next day Obama declares executive privilege on the very documents that Holder tried to “buy peace” with the day before. It makes no sense that these documents would be in play for a bargain on the 19th but by the next morning they’re protected by executive privilege. It’s pretty clear that Obama is trying to obstruct the Congressional investigation, at least as far as this small batch of documents is concerned.
Issa cited In re Sealed Case (Espy) 121 F.3d 729 (1997) which states on executive privilege:
The privilege should not extend to staff outside the White House in executive branch agencies. Instead, the privilege should apply only to communications authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.
This is important because the Courts have already decided that communications within, for example, the Justice Department aren’t subject to executive privilege. This includes communications between the Attorney General and his subordinates. In short the only way these documents could be subject to executive privilege is if Obama is directly involved and receiving advice from Holder or other advisers. This goes against everything Obama has said on Fast and Furious so far and it goes against what Holder has testified under oath to concerning this program. In short, either they were lying or they’re trying to both obstruct a Congressional investigation and expand executive privilege.
It’s a safe bet that the documents Holder offered Issa contain no communications with Obama. Holder wouldn’t have made those documents available on June 19th. This the claim of executive privilege fails under the In re Sealed Case (Espy) case. That doesn’t mean there aren’t other documents out there linking Obama earlier than when he and Holder claim the President found out, only that these documents don’t contain such information. What is really going on here is Obama is helping Holder obstruct the Congressional investigation and expand executive privilege. It is a lawless act and one we should generally oppose no matter what we think of Fast and Furious or Issa’s investigation. The last thing we need is more executive power. We should be very reluctant to allow the President to withhold even more documents from Congress and the American people.