The Fast and Furious investigation
by the House Oversight and Government Reform Committee has produced
President Obama’s first executive privilege claim. The Committee has
been aggressively looking into the ATF’s botched operation that
deliberately allowed about 2,000 weapons to be sold into Mexico, and
distributed among Mexican drug cartels. This resulted in the killing of
at least one US Border Patrol agent. The committee has subpoenaed
Justice Department documents pertaining to who in the department knew
about the operation and when they knew it. The department has refused to
turn over most of the subpoenaed documents.
Attorney General Eric Holder has
been waltzing the committee around, producing selected documents and
(you guessed it) blaming the Bush Administration for similar and worse
activities. These charges were so clearly erroneous that Holder later
withdrew them. This has resulted in a showdown, and Wednesday the
committee voted to hold Holder in contempt. Shortly before the vote,
Obama claimed executive privilege in order to refuse to prevent the
production of the subpoenaed documents.
Issues as to the proper use of
presidential executive privilege have arisen many times, since every
president has used it at one time or another. Interestingly, executive
privilege is not found in the Constitution, but neither is the right of
Congress to investigate. But the Supreme Court has recognized both as
implied powers, inherent within the powers that are given to both
branches by the Constitution.
What About Executive Privilege?
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 Meyers 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 DC
Court of Appeals has held just the opposite.
Nevertheless, I believe these are
precisely the kind of documents that Obama is claiming as 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 that they were 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 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 that
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 superior to that of 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.
Getting To The Bottom Of It All
However, even under these
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 if 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, they 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 — that the House file a
civil suit in Federal Court for enforcement of the subpoena and request
the court to look at the Justice documents “in camera” to determine if
executive privilege is appropriate. I think that having this potential
criminal shadow over the proceedings would help the House in this
endeavor. Then, if the evidence dictates, a criminal case could be
pursued.
A Very Simple Cause: Justice
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 for right now it’s a political
matter and it is apparent that the Obama team is sitting on damaging
information. As my pal Andrew McCarthy points out, Holder paints his
department as the heroes in all of this. After trying to blame his
predecessor (unsuccessfully), he claims that he was the one that put a
stop to Fast and Furious. McCarthy asks if 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 US Border Patrol
agent and probably many innocent Mexicans?”
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