The investigation into Operation Fast and Furious by the House Oversight and Government Reform Committee has resulted in President Obama’s invoking executive privilege for the first time. Attorney General Eric Holder has been waltzing the committee around, producing only selected documents about the botched Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) gun-running operation, and (you guessed it) blaming the Bush administration for having knowledge of similar activities. This charge was so clearly erroneous that Holder later withdrew it. The showdown between Holder and the committee culminated on Wednesday in a vote to hold Holder in contempt. Shortly before the vote, Obama claimed executive privilege in order to prevent the production of the subpoenaed documents.
Issues as to the proper use of presidential executive privilege have arisen many times, since almost every modern president has used it at one time or another. Interestingly, no mention of executive privilege is found in the Constitution, and neither is any of the right of Congress to investigate. But the Supreme Court has recognized both as implied powers, inherent in the powers that are given to both branches by the Constitution.
With regard to executive privilege, the courts have recognized a qualified privilege to protect communications between the president and executive officials, as well as deliberations that go into advice given to the president. George W. Bush successfully claimed the privilege with regard to matters pertaining to presidential adviser Karl Rove, White House counsel Harriet Miers, and Vice President Dick Cheney. Presidents have, on occasion, cast an even wider net over executive-branch action, but I am not aware of any court case that has upheld the right to treat communications between people who work in a department, such as Justice, as privileged. In fact, recently the D.C. Court of Appeals held just the opposite.
Nevertheless, I believe these intra-department communications are precisely the kind of documents that Obama is claiming are privileged. If in fact the documents, or some of them, were sent to the president or his White House aides, then the president’s claim would be stronger. But it would also mean he or his staff was much more involved in Fast and Furious than anyone knew.
In that case, the president would take a public-relations hit (assuming anyone in the mainstream media would report it), but he could then raise another point: Courts are more likely to set aside executive privilege if it’s being used to shield information in a criminal investigation.
Everyone remembers that this is what happened in President Nixon’s case. The special prosecutor was given access to the Nixon tapes. What is often not remembered is that the Watergate Committee, on which I served as counsel, lost its case and its attempt to obtain the same tapes. In both cases, the Supreme Court balanced the legitimate, competing interests of the president on the one hand and the special prosecutor and the committee on the other. The Court held that the need to do justice in a criminal case overrode the president’s interest in protecting even his own conversations and those of his aides. On the other hand, the committee’s interest in educating the people and in informing itself with regard to possible future legislation, while legitimate, was not considered superior to the president’s interests as described above. A congressional committee, of course, has no prosecutorial authority.
The favored position given to a criminal investigation was seen again in 1998, when a federal judge ruled that aides to President Clinton could be called by the independent counsel to testify in the Lewinsky scandal.
However, even under similar circumstances, the Obama team would have a problem. The House committee has already caught the Justice Department in a blatant misrepresentation. In February of last year, the department in a letter to the committee flatly stated that there was no “gun-walking” into Mexico. Now, some of the documents being subpoenaed have to do with determining whether this was a deliberate lie to Congress. If the committee can’t get to the bottom of that, then they might as well close up shop.
Roger Clemens can tell you that even weak cases are doggedly pursued. So, while the House is not in the business of prosecuting criminal cases, it could refer the case to Justice, and, since Justice can’t investigate itself, call for special counsel. We know how far that would get us.
Others have suggested another approach that would probably be more fruitful — the House could file a civil suit in federal court for enforcement of the subpoena and ask the court to look at the Justice documents “in camera” (i.e., in private) to determine whether executive privilege may legitimately be invoked. I think that having a potential criminal shadow over the proceedings would help the House in this endeavor. Then, if the evidence dictates, a criminal case could be pursued.
At the end of the day, nothing will happen in the legal arena to settle the matter before the election, and Obama knows that. But the matter should still be pursued for a very simple reason: justice. Justice for the families of those killed in the botched ATF operation and for anyone who tried to cover it up.
As of right now, it’s a political matter, and it is apparent that the Obama team is sitting on damaging information. As my pal Andrew C. McCarthy points out, Holder paints his department as the heroes in all of this. After trying to blame his predecessor (unsuccessfully), he claimed that he was the one who put a stop to Fast and Furious. McCarthy asks whether you think that this administration, which shovels out the nation’s top secrets at the drop of a hat, would sit on this information if it made them look good.
As all of this plays out, Obama should be asked, again and again, “Why did you choose to wait and exercise your only executive-privilege claim to prevent the disclosure of those responsible for the murder of at least one U.S. Border Patrol agent and probably many innocent Mexicans?”