Why Obama's Claim of Executive Privilege Won't Hold

Why Obama's Claim of Executive Privilege Won't Hold


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. 

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.

Then-Senator Barack Obama criticized the Bush claim of executive privilege at the time, decrying “tendency on the part of this administration to — to try to hide behind executive privilege every time there’s something a little shaky that’s taking place.” Rove never complied with the subpoena, but the press covered the conflict in great detail. 

This shows the trap into which Obama has fallen.  Attorneys General do not get executive privilege on their own; federal agencies do answer to Congress as part of their oversight capacity, and Holder has to comply with lawful subpoenas.  In order to claim executive privilege, Holder and the White House have to claim that the documents in question – consisting of tens of thousands of pages – relate directly to consultations and advice Obama engaged in during the course of his job as President. 

However, the White House has consistently claimed never to have known about Operation Fast and Furious until its exposure with the death of Border Patrol agent Brian Terry.  Holder and other officials at the Department of Justice and the ATF have made the same claim while testifying to Congress.  In order to make executive privilege stick and keep the documents out of the hands of Congress, the entire Obama administration will have to make the opposite claim, and tell a court that the documents can’t be released because they relate directly to actions taken by Obama himself.  A Congressional Research Service analysis from 2008 makes the need for presidential involvement in a claim of executive privilege quite clear, quoting from US v Espy, a Clinton-era case:

“Not every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege. In particular, 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 advisor’s staff who have broad and significant responsibility for investigation and  formulating the advice to be given the President on the particular matter to which the communications relate. Only communications at that level are close enough to the President to be revelatory of his deliberations or to pose a risk to the candor of his advisers.”

Therefore, the Obama administration can’t claim executive privilege for actions that don’t involve the President, or his immediate staff in advising the President.  The claim of privilege appears a tacit admission that previous claims that Obama and his White House staff were unaware of Operation Fast and Furious and uninvolved in it were false. That opens up potential criminal charges for anyone who testified differently under oath for perjury and obstruction of justice – the end results of most executive-branch scandals, most famously in Watergate.

Even that might not be enough.  In the case involving the US Attorneys, there was no evidence that laws had been broken, since Presidents can dismiss political appointees at will.  In Operation Fast and Furious, two American law-enforcement agents have been murdered with guns that the ATF allowed to flow over the border, violating the law and official procedure – not to mention hundreds dead in Mexico for the same reason.  Under the precedent set in US v Nixon, a court would almost certainly find that a Congressional investigation into potential criminal activity would trump a claim of executive privilege, especially after the apparent misrepresentation of White House involvement in the operation. 

By asserting executive privilege, the Obama administration has made it clear that they fear the exposure of ATF and Department of Justice documentation, and that Obama himself has some connection to the papers.  The question that arises has more than a whiff of Watergate to it: what did the President know, and when did he know it?  Thanks to the claim of executive privilege, the media will no longer be able to ignore the deadly outcomes of Operation Fast and Furious, and the timing of this scandal could ensure that Obama won’t have the ability to call on executive privilege after January.