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Flexing Executive Privilege


The rather dry matter of executive privilege is becoming a hot talking point in the news. This power of the executive branch is the latest battleground between the president and a largely hostile Congress. The Republican congressman Darrell Issa — chairman of the recently scorned House Oversight Committee — is determined to create as much heat as possible for Obama. Issa’s claim that executive privilege is being misused, however, rests on the definition of this power and where boundaries are drawn.

Background of the current executive-privilege conflict

Fast and Furious is the name of a Department of Justice (DOJ) operation in which agents allowed American guns to be sold to Mexican drug dealers who freely smuggled them across the border. The purpose was to track the guns and thus eventually arrest Mexican drug lords for crimes committed with them. The operation was a spectacular failure that culminated in an American customs agent, Brian Terry, being murdered with one of the weapons. Fast and Furious terminated in 2011.

Sensing a juicy election-year scandal, the Republican-dominated House pursued Fast and Furious documents through a congressional committee subpoena. U.S. Attorney General Eric Holder refused to produce some specific documents. After a lengthy and high-profile hearing, Holder was on the brink of being found in contempt of Congress by the committee when President Obama intervened. He asserted executive privilege in order to legally withhold key documents and to rescue Holder from the “contempt” vote.

The presidential flexing of muscle was only partially successful. It delayed or prevented the release of the contested DOJ material, but the committee proceeded with a vote that fell along party lines, with the Republicans dominating. Holder was held in contempt, and the matter proceeded to the House of Representatives for a full vote. From there, a resulting contempt charge will be referred to the U.S. Attorney for the District of Columbia, who may or may not pursue prosecution.

Meanwhile, Republicans have been making hay of Obama’s invocation of executive privilege. Politico reported the sentiments of House Speaker John Boehner on June 20:

“Until now, everyone believed that the decisions regarding ‘Fast and Furious’ were confined to the Department of Justice,” Boehner spokesman Brendan Buck said in a statement.

“The White House decision to invoke executive privilege implies that White House officials were either involved in the ‘Fast and Furious’ operation or the cover-up that followed. The Administration has always insisted that wasn’t the case. Were they lying, or are they now bending the law to hide the truth?” Buck said.

In response, Holder characterized the committee’s vote as “political theater” and accused Issa of provoking “an avoidable conflict between Congress and the executive branch” as an “election-year tactic.”

Meanwhile Issa upped the political ante. He stated in a June 26 open letter to Obama,

Either you or your most senior advisors were involved in managing Operation Fast & Furious and the fallout from it … or, you are asserting a presidential power that you know to be unjustified solely for the purpose of further obstructing a congressional investigation.

Obama staunchly maintains that no one in the White House worked with the DOJ on Fast and Furious.

Other prominent Democrats are “playing the race card.” Rev. Al Sharpton told D.C. media source the Hill, “I’m not saying that this is because Holder is black, and I’m not calling [Republicans] racists. I’m saying what they’re doing has a racial effect.”

Earlier, in a Huffington Post op-ed, Sharpton commented, “AG Holder was in essence ‘stopped & frisked’ without probable cause, and after he cooperated, he was made an example of. What Issa just showed us is that no matter what our [African Americans’] stature in this world, someone can easily try to ‘put us in our place.’”

Politics does not get much dirtier than accusing the House of Representatives of racism. This is especially true when the parents of the dead customs agent, Brian Terry, have been appearing on TV to ask the president for the same answers that the House wants. In a FOX News interview, Mr. Terry stated his belief that the Obama administration is “lying and hiding,” and “passing the buck.”

The mechanism used either to “lie and hide” or to “protect properly confidential information” (depending on your perspective) is executive privilege.

What is executive privilege?

Executive privilege is a power of the president and other members of the executive branch to negate the authority of subpoenas and other demands for information or testimony from the legislative and judicial branches. Executive privilege does not appear in the United States Constitution. Nevertheless, the Supreme Court has ruled it necessary to the separation of powers by which the United States government balances authority, so that no one branch dominates in the tripartite division.

There are two situations in which executive privilege is invoked. The first is for national security reasons; since the president is the commander in chief of the U.S. military, this is the most common invocation of privilege, and it is usually unchallenged. The second reason is to protect discussions the president has with advisers and top aides so that the exchanges can be candid; this invocation is less frequent and more often challenged. Once executive privilege is invoked, however, it is assumed to be legitimate; anyone who wishes to legally pursue the matter is required to make a “sufficient showing” that the material sought is essential to the just procedure of law.

Historically, it has usually been the executive and legislative branches that have clashed on this issue, with the judicial branch acting to resolve conflicts. A precedent was set with executive privilege as early as 1796, when President George Washington refused to reveal documents on the Jay Treaty with Britain to the House of Representatives.

In 1807, however, the Supreme Court addressed the limits of executive privilege in the case for treason brought against former vice-president Aaron Burr. President Thomas Jefferson refused to turn over a letter that allegedly exonerated Burr. Chief Justice John Marshall found that the president was not exempt from the requirements of the Sixth Amendment, which sets forth the rights involved in criminal prosecutions. The letter was produced for the court but never publicly revealed. Thus, the court’s ruling was ambiguous, although it did signify that the president was subject to the “law of the land.”

More recently, in the Supreme Court case United States v. Nixon (1974), the court ruled unanimously against President Richard Nixon’s invocation of executive privilege over conversations with his advisers. Specifically, Nixon claimed that he was not bound to honor a subpoena issued for papers and tapes concerning the Watergate scandal. In earlier arguments before the U.S. District Court for the District of Columbia, Nixon’s attorney James D. St. Clair had stated, “The President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.”

Thus, in United States v. Nixon, the main question considered by the Supreme Court was whether executive privilege had immunity from judicial review. It found that neither the separation of powers nor a president’s need for confidential conversations gave him an unqualified privilege. While granting the basic legitimacy of executive privilege, the court decided that “due process of law in the fair administration of justice” outweighed the presidential power. In short, the Supreme Court affirmed its position as the final arbiter of what is constitutional.

Nevertheless, the boundaries of executive privilege are not as clear-cut as other presidential powers. This is largely because presidents dislike having direct legal confrontations with Congress. Even presidents who assert the privilege generally attempt to compromise by producing at least some of the documents demanded. When a president absolutely refuses to produce subpoenaed material, it gives a strong appearance of serious malfeasance. The material eventually produced by Nixon was so damaging that he resigned the presidency about two weeks later.

Certainly, compromise was the course favored by Obama. Indeed, this is the first time Obama has invoked executive privilege — a presidential power he has criticized President George W. Bush for using six times. Moreover, the DOJ has provided over 7,500 documents to the House Oversight Committee on Fast and Furious, and Holder tried to negotiate the terms for providing more.

The specific material being so avidly sought consists of internal DOJ communications from February to December 2011. In February, the Obama administration denied knowledge of Fast and Furious, and then later retracted that denial. It is in these documents that the Republicans sniff a smoking gun — one they think points straight at the Oval Office.

Is Obama’s invocation justified?

Obama’s exercise of executive privilege was not for national security but for confidentiality, which is a more vulnerable ground. He invoked a “deliberative process privilege” that covers the documents of executive-branch officials.

In his open letter to Obama on June 26, Issa offered a legal theory of executive privilege that is likely to be the foundation of any court challenge. He distinguished between two types of privilege: the presidential communications privilege, and the deliberative process privilege. In his letter, Issa wrote,

Both … are executive privileges designed to protect the confidentiality of executive branch decision-making. The deliberative-process privilege, however, which applies to executive branch officials generally, is a common law privilege that requires a lower threshold of need to be overcome, and “disappears altogether when there is any reason to believe government misconduct has occurred.”

Issa stated that Obama was, in fact, misapplying the much narrower and stronger

“presidential communications privilege” which covers documents between a president and his senior advisers. Issa’s letter declared, “Courts have consistently held that the assertion of the constitutionally-based executive privilege … is only applicable with respect to documents and communications that implicate the confidentiality of the president’s decision-making process. (emphasis added)

Thus, Issa considers the invocation of executive privilege to be tantamount to Obama confessing his involvement in “Fast and Furious.”

If Issa is correct and the privilege invoked is based on common law rather than upon the Constitution, then he may well have a winning challenge: United States v. Obama.

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    Wendy McElroy is an author for The Future of Freedom Foundation, a fellow of the Independent Institute, and the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).