Why Obama's Claim of Executive Privilege Won't Hold
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The Fiscal Times
June 21, 2012

Until yesterday, there was little reason to believe that scandals would play a major role in the 2012 presidential election.  That isn’t to say that the Barack Obama administration has been scandal-free, as Jonathan Alter tried to argue last year. The failure of Solyndra and the connection to the President’s fundraisers has been debated in the election cycle, but only as an issue to jobs and Obama’s economic and energy policies, along with other green-energy stimulus recipients who have either gone bankrupt or are approaching that status now. 

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In his October 2011 Bloomberg column, Alter never bothered to mention the slow-burning Congressional investigation into a supposedly botched ATF operation that resulted in thousands of weapons flowing into Mexico untracked, and the deaths of two American law-enforcement officers.  Alter stood in good company; with a couple of notable exceptions (chiefly CBS and its reporter Sharyl Attkisson), the national media ignored Operation Fast and Furious, too.

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NBC News has only mentioned the Congressional probe by the House Oversight Committee once, and only when Senator John Cornyn demanded the resignation of Attorney General Eric Holder earlier this month for his refusal to release documents subpoenaed by Congress in the probe – and didn’t bother to inform its viewers of the deaths that resulted from the ATF operation, "Fast and Furious."

The days of media silence came to an end yesterday.  Holder had tried to avert a vote on contempt of Congress charges for failing to turn over thousands of documents subpoenaed by the Oversight Committee.  When a meeting with Oversight chair Darrell Issa failed, Holder asked President Obama to claim executive privilege to protect the documents.  The White House asserted the privilege, and opened up a hornet’s nest for Obama, Holder, and everyone who has already testified in the case – and that is due to the nature of executive privilege itself.

Executive privilege exists in American law as recognition of the nature of separate and equal branches of government.  Congress and the executive have checks and balances against each others’ power, but neither is accountable to the other in a hierarchical sense.  Courts have upheld claims of executive privilege as Presidents answer to voters rather than Congress, and are therefore entitled to have confidential advice and consultations on policy. 

However, the same courts have only upheld it narrowly – and limited to the offices of President and Vice President. The most famous case originated in theWatergate scandal, where Richard Nixon’s claim of executive privilege got shot down by the Supreme Court.  In US v Nixon (1974), the court ruled that claims of executive privilege on consultations with the President could not survive the need to investigate crimes, and forced Nixon to turn over to the court tapes made in the White House of conversations relating to the Watergate break-in.  Nixon resigned from office shortly afterward.

Claims of executive privilege are always controversial, even when they succeed.  When George W. Bush dismissed several US Attorneys, political appointees who serve at the pleasure of a President, Congress demanded testimony from White House aides Karl Rove, Harriet Miers, and Sarah Taylor as to the motivation behind the dismissals.  Bush invoked executive privilege, which Senator Pat Leahy insisted was illegitimate, claiming that Bush had nothing to do with the terminations, which would have made it impossible for executive privilege to be invoked.

Political analyst Edward Morrissey has been writing and blogging since 2003. He is also a senior editor at Hot Air, part of the Townhall/Hot Air group of conservative publications, and hosts a weekly radio show in Minnesota.