Deliberative or Evasive? Obama Asserts Privilege Over “Fast and Furious”

President Barack Obama today asserted executive privilege over documents long sought by Congress in the investigation of the “Fast and Furious” operation. The assertion in my view is facially overbroad and excessive. It is the latest example of sweeping claims of executive power and privilege by this Administration. Congress has ample reason to investigate this operation, which involves alleged criminal acts that may have resulted in the death of third parties, including a U.S. agent. The Justice Department is accused of complicity in one of the most ill-conceived and harmful operations in recent years. The very officials and agency accused of wrongdoing is claiming that it can withhold documents from a committee with oversight responsibilities.

The position of the Justice Department on the issue seems hopelessly conflicted. On one hand, the White House and Justice Department have stressed that Obama did not review these documents to protect him from the political backlash over the operation. Yet, it is claiming sweeping privilege over Justice Department documents. It is precisely the type of executive privilege claim that many of us denounced during the Bush Administration. The Administration is left with deliberative process rather than a presidential communication privilege since these documents were not “solicited and received” by the President

In a letter by Deputy Attorney General James Cole wrote to Rep. Darrell Issa, R-Calif., the Justice Department refused to turn over the documents on the basis of privilege. The letter was delivered shortly before a scheduled contempt vote. The full House would have to approve the measure for Holder to be held in contempt.

Deputy Attorney General James Cole wrote to Rep. Darrell Issa, R-Calif., on Wednesday informing him that the president has granted the request.

The documents were written from February 2011 and afterward detailing how Justice officials learned about the Fast and Furious probe. Holder insists that they fall within the “deliberative process” privilege. The position however could sharply curtail the ability of Congress to be a check and balance in such controversies. Any documents prepared in response to such a controversy would be viewed as deliberative process. This claim is generally used in discovery in civil litigations and Freedom of Information Act requests. It is the most frequently invoked executive privilege in the federal courts. However, the documents must be both “predecisional” as well as “deliberative.”

The use of the privilege in my view raises serious questions over the separation of powers in the tripartite system. The deliberative process privilege is not constitutionally based and “disappears altogether when there is any reason to believe government misconduct [has] occurred.” In re Sealed Case (Espy), 121 F.3d 729, 745 (D.C. Cir. 1997).

The Justice Department has long tried to expand the deliberative process privilege to allow it the same sweeping protections that come with presidential communications. However, the Supreme Court dismissed the notion that agency employees are chilled by congressional inquiries in NLRB v. Sears, Roebuck & Co:

The probability that the agency employee will be inhibited from freely advising a decisionmaker for fear that his advice if adopted, will become public is slight. First, when adopted, the reasoning becomes that of the agency and becomes its responsibility to defend. Second, agency employees will generally be encouraged rather than discouraged by public knowledge that their policy suggestions have been adopted by the agency. Moreover, the public interest in knowing the reasons for a policy actually adopted by an agency supports [disclosure].

My greatest concern rests with the impact on checks and balances in a system already left anemic by ever-expanding claims of executive power.

Source: ABA Journal

236 thoughts on “Deliberative or Evasive? Obama Asserts Privilege Over “Fast and Furious””

  1. HuffPo is reporting the following case of “He Said, She Said”. The saddest part is that both of them are right (although the “He Said” is not right for the reasons he gives and “She Said” is missing the blatant hypocrisy of her statements following her “Impeachment is off the table” screw up).

    He Said:
    Rep. Trey Gowdy (R-S.C.) called House Minority Leader Nancy Pelosi (D-Calif.) “mind-numbingly stupid” for suggesting that Republicans are attacking Attorney General Eric Holder in order to advance an agenda of voter suppression.

    “It’s really beneath the office of a member of Congress to say something that outrageous, and the fact that she was once the Speaker is mind numbing,” Gowdy told Fox News on Thursday. “So I don’t know what was wrong with her yesterday or today or whenever she said that, but I would schedule an appointment with my doctor if she thinks that we are doing this to suppress votes this fall. That is mind-numbingly stupid,” he said.

    No, Trey. She got the politics behind the move about right. She’s mind-numbingly stupid for not putting Bush, Cheney, Rove, et al. in the docket so the Senate and the courts could have done their job and put them in the pokey for a very long time for their assorting crimes which arguably include treason.

    She Said:
    “I’m telling you, this is connected,” Pelosi said during a news conference Thursday. “It is no accident. It is a decision and it is as clear as can be. It’s not only to monopolize his time, it’s to undermine his name … as he goes forward to protect and defend the Constitution of the United States.”

    No, Nancy. You don’t get to get all preachy about defending the Constitution when you’ve done such a shit job of it yourself.

    A pox upon both of your houses.

  2. OS, I hear you.
    Sometimes I do this stuff just like a person flexes a muscle.
    I’m not gonna say which muscle, of course.

  3. CLH,

    You might want to reconsider that Australia thing. They have their own homegrown brand of authoritarian issues causing trouble.

  4. I’ve read some pretty ludicrous stuff written here…..the responses well…. Do it if you feel the need too…..

  5. CLH & Malisha, my father was a really smart guy who was an astute observer of people. He used parables, aphorisms and proverbs a lot when commenting about the foibles of those around him. One of his favorites was, “He would argue with a signpost he painted himself.”

    Does that sound like anyone we know? Never mind….that was a rhetorical question.

  6. And thus anon provides ammunition to the censorship inclined. Sigh. I got through the first half of the posts, and there were great comments, if some disagreements between the usual crowds of Gene H., Mike S., rafflaw, and Jill, and Malisha, and so on. Then anon posts. Gah. Made me completley lose my train of thought.

    But…. as to the original post, Prof. Turley makes an outstanding point regarding abuse of executive powers. The fact that the Viper salesman is a douchebag is tangential to the message that abuse of executive authority is abuse of executive authority, regardless of which party is in power. What makes this so frustrating is that it’s been delegated to party lines, instead of constitutional lines, or even idealogical lines. It’s all about winning the next election. What I find particularly sickening is that as much as I despise Holder and Obama, Mitt Romney would be just as bad. Do we pick a president who has no problem whatsoever with manipulating his “position” to accrue popular favor? Or do we elect… the other guy doing the exact same thing? I’m moving to Australia. If I’m going to have personal freedoms curtailed, I want to do it in a place where they make good beer.

  7. “Also there’s a 400 history behind why the n word is a word mostly reserved towards usage by Blacks. If you’re going to suggest that for the word feminista, I’m going to have to ask you for a citation on that one.”


    Phallus, please!

  8. Saying something dickish and dick headed and then typing & cutting & pasting endless screeds of essentially, ‘see, they do it too’ is one annoying thing misogynists do.

    nanananana, just like kindergarden. Do gay men have to put up with a version of this?

    Obama, deliberative or evasive? Both, because Issa is being a dickish dickhead.

Comments are closed.