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.