Presidential claims of executive privilege are the haute
cuisine of politics. Served in a covered dish, they are
mysteries that tantalize, the aromas evoking everything that the
mind can conjure. What is the president trying to hide? In
Watergate terms, what did the president know and when did he know
it?
Obama’s assertion of executive privilege to prevent the House
Oversight and Government Reform Committee from gaining access to
Justice Department documents on the “Fast and Furious” gun walking
operation has already served the president’s main purpose. By
asserting executive privilege, Obama has blocked criminal
consequences for Attorney General Eric Holder from any contempt of
Congress resolution that may be passed. More importantly (at least
to him), Obama has successfully blocked the disclosure of the
documents at least until the November election. It is barely within
the realm of possibilities that the courts will resolve the
executive privilege claim to the F&F papers before then.
Others have analyzed the nature of Obama’s privilege assertion
but one very important aspect hasn’t drawn the attention it
deserves: the breadth of Obama’s assertion which, quite evidently,
goes beyond what previous presidents have done and what the courts
have decided is within a president’s power.
There is a host of presidential “executive privileges,” outlined
very well in the D.C. Circuit’s Clinton-era opinion in In re
Sealed Case. Let’s exclude for the purposes of this analysis
other privileges that may protect some of the documents Holder
refuses to produce, such as those that may reveal the identities of
covert informants. What we are left with — and neither we nor the
House committee yet know how many there may be — are tens of
thousands of documents that Obama is seeking to protect under the
so-called “presidential communications privilege” and its
derivative, the “deliberative process privilege.” Neither is
absolute, and the latter is weaker, subject to what the court
called a “greater ease” in overcoming it.
The matter before us is whether Obama’s claim is an over-reach,
another assertion that this White House has greater powers than
have been granted it by the Constitution, law, and precedent.
According to a
May memo to the committee written by Chairman Darrell Issa
(R-CA), Operation Fast and Furious was conceived in the fall of
2009 by the Phoenix office of ATF. The idea was to allow illegal
“straw man” purchases of weapons in the United States in the hopes
that they could be traced to drug kingpins and financiers in
Mexico. In January 2010, through the U.S. Attorney for Arizona, the
program became an operation by the Justice Department’s Organized
Crime Drug Enforcement Task Force, approved by senior Justice
Department officials and granted higher funding. The program went
horribly awry, without an apparent effort to trace the
approximately 2,000 weapons to the higher ranks of Mexico’s drug
kingdom.
In December 2010, Border Patrolman Brian Terry was killed and
two of those weapons were recovered at the scene of the murder. The
F&F program thus became the focus of the House Committee’s
investigation.
The October 2011 House
subpoena to the Attorney General demanded production of 22
categories of documents. Included among them were:
- all documents related to F&F sent to or authored by Holder
and fifteen other top Justice Department officials;
- all such documents of communications with the White House about
F&F and other gun-trafficking cases;
- all documents showing ATF failure to interdict straw man gun
purchases related to F&F;
- all documents of communications between the U.S. Attorney in
Arizona, ATF and certain ATF agents related to F&F; and
- surveillance camera tapes, reports of investigation by ATF and
the FBI; and
- all agendas, meeting notes, meeting minutes, and follow-up
reports for the Attorney General’s Advisory Committee of U.S.
Attorneys between March 1, 2009 and July 31, 2011, referring or
relating to Operation Fast and Furious.
Over 78,000 documents related to Fast and Furious were turned
over to the Justice Department’s Inspector General. Only about ten
percent were produced to the House Committee. Holder has
stonewalled on the rest, offering last week to brief the committee
members on the contents of some of them on condition that the
committee would agree that the briefing would satisfy the
subpoenas. It wasn’t a good-faith offer: he knew the committee
would have to reject it. Holder continues to refuse to turn any of
the contested documents over to the committee.
The House Committee passed a resolution holding Holder in
contempt of Congress. The House may vote on that resolution this
week. Before the House committee voted on contempt, Obama asserted
executive privilege on the documents Holder refuses to produce.
Because a president has to rely on his advisors, documents
prepared by the advisors can be protected from disclosure by the
“deliberative process” privilege to ensure a president can have
access to the candid and informed advice he needs. But the scope of
this privilege has, by Obama’s overly-broad assertion of it, become
the issue.
As the court wrote in In re Sealed Case, the
deliberative process privilege can protect some of the
communications of presidential advisors that do not reach the
president himself. The court ruled that the deliberative process
privilege is inextricably bound to the presidential advisory
process. If the documents in question were prepared in response to
a request by the president’s staff for advice on a matter, even
lower-ranking subordinates’ work can be protected by the
deliberative process privilege. Obama’s assertion covers too many
categories of documents that usually fall outside the
privilege.
For example, documents that are summaries of facts are not
usually protected nor are those that contain the analysis of facts
and judgments of subordinates not involved in advising the
president. From the descriptions of documents in the subpoena to
Holder, it appears that most of the categories of documents
requested fall outside the deliberative process privilege.
And what about those that don’t? Holder and Obama have put
themselves in a dilemma: either the president and his top advisors
were deeply involved in the Fast and Furious operation or Obama is
abusing his power to conceal what misdeeds and illegal behavior
took place.
Obama’s defenders in the media, notably the Washington
Post, are throwing smoke bombs now to prevent those questions
from being asked in the public debate on Obama’s privilege claim.
In its lead Saturday
editorial, which mentions the utterly false February 2011
letter from an assistant attorney general to Sen. Charles Grassley
that said there was never an Operation Fast and Furious, the
Post said there was no evidence that the letter was
anything other than an “honest bureaucratic mistake.”
How can there be any public evidence when the Attorney General
and now the president are burying the documents that may contain
it?
Chairman Issa now holds the whip that should drive the political
debate on Obama’s assertion of privilege. Speaker Boehner shouldn’t
block a vote on the contempt resolution this week. There’s no room
for deals or compromises now.
The contempt debate should focus not only on the apparent
misdeeds of ATF and the Justice Department but also on Obama’s
over-broad assertion of privilege. It’s as much an abuse of
presidential power as Obama’s unilateral actions on illegal
immigration. Now it’s an “inside the Beltway” issue. It’s up to the
Republicans in the House and the Party’s leader, Mitt Romney, to
make sure it goes far beyond that and into November.
