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
Anybody remember The Firearm Owners Protection Act of 1986? Anybody remember that Congress has blocked the ATF from keeping a centralized computer database of gun transactions? Anybody remember that in In 2006, while the last permanent director, Carl J. Truscott, was being investigated for his spending habits, the N.R.A. prodded Congress to require Senate confirmation for the job? Since then neither Bush nor Obama has succeeded in getting a confirmation for Director through the Congress.
The NRA wants to shut down ATF for good and that’s what’s really going on here. Just as Obama protected the CIA torturers, he’s protecting the ATF agents who, since Congress won’t let them keep a database of gun sales, come up with stupid operations like Fast and Furious.
As far as I’m concerned, Obama was wrong about the torturers and he’s wrong about this.
But the people working to do the bidding of the NRA are also a big part of the problem and Issa has been accused by the Watchdog Institute of building a team within the House Committee on Oversight and Government Reform that includes staff members with close connections to industries that could benefit from his investigations. Issa’s speech at the 2012 NRA Celebration of American Values Leadership Forum was interesting. He’s definitely an NRA kiss-up.
Or am I being too harsh?
Let’s not get off subject with Fluke, but since you insist – She had/has NO qualifications to testify. She’s a law student at a prestigious school that will guarantee her a very very nice living in the future, should she elect to do so. Her asking that we have to pay for her rubbers for all the screwing she is alleging is ridiculous. I suggest she get a collection of all the dudes she is doing it with to throw in a buck for the purpose of procuring the needed allotment of rubbers needed to protect the USA from her replicating and infesting humanity even further. If she pools the $ together it should come up to at least 110 to 125 bucks (for now) which should stock her up for a little while. Of course if Holder was one of the beaus then Obama would assert Exec Priv to cover up any documentation related to this.
Cheryl, Spot on.
The problem is that Issa isn’t trying to get to the truth to make things better. He is just looking for dirt to smear the administration. He has proven this over and over again. They even have an acronym for his extreme partisan investigations: IOKIYAR.
http://youtu.be/bpwYh9TD6Nc
“http://abcnews.go.com/blogs/politics/2012/02/rep-darrell-issa-bars-minority-witness-a-woman-on-contraception-2/ Issa barred Sandra Fluke from testifying. He definitely has some agenda……..”
Exactly! This is why it is okay for Obama to claim executive privilege here.
http://abcnews.go.com/blogs/politics/2012/02/rep-darrell-issa-bars-minority-witness-a-woman-on-contraception-2/ Issa barred Sandra Fluke from testifying. He definitely has some agenda……..
Geeba, Geeba, Fox Nation: “Obama’s Lawless Presidency Close to Totalitarianism.” from the Maddow blog.
Who thought of this dumb idea to send guns to Mexico thinking they could be ‘tracked’? oh yea, someone who is getting paid off by the drug cartels. We launder the drug money in our banks and send weapons down to defend that money.
Gad, I simply want to know who thought this was a good idea? I know it started under the Bush administration, but, sheesh- whoever thought of this is too dumb to even work for the government.
Is it one of those Bush embeds who is impossible to fire?
And of course, the whistleblower in this case is the one being punished…..
Is it too late to start an impeachment hearing….. This is bull shit…. It was bull shit when Clinton did it as well as Bush…. At least George the first and rocket Ronnie stated the could not recall….. Yeah right…..
7600 documents released seems like not withholding.
This is a witch hunt, the repubs trying to smear the pres with this. It has been their m.o. since Mr. Obama took office.
I think that the professor is so unhappy with the president that almost everything he now does has a nefarious cause regardless of the reason.
It’s obvious that Swarthy mom will never be convinced. Well we all have different opinions and that’s OK. Let’s just point out that the plethora of late Friday “exec orders” is quite different than asserting “exec privilege”. By making this assertion IL Duce Obama has just admitted involvement in this terrible operation. I’m no barrister but it seems that way. DOJ Prime Minister Document Holder has simply stonewalled the process of justice and has held onto these precious documents like an anus getting it’s money’s worth out of a Prep H suppository. Obama has now advertised that this is all going to be “covered up” by his excellency’s edict. So much for the facade of being the most transparent Presidency, unless the meaning of transparent means “I don’t care what you and those silly “separation of powers” believers think … I’m boldly stating that I am the KIng and you will declare fealty to my desires”.
“Democrats argued that Republicans were rushing to do something unprecedented in American history: citing the highest law enforcement official in the land for contempt. (In 1998, the Republican-led oversight committee voted to recommend holding Attorney General Janet Reno in contempt over documents related to the impeachment of President Bill Clinton, but the measure was never put before the full House for a vote.) But Republicans said Mr. Holder had no legal right to withhold the documents, and they needed the information to complete the investigation.
But Representative Carolyn Maloney, Democrat of New York, said the investigation had degenerated into a “political witch hunt,” while a fellow Democrat, Representative Gerald E. Connolly of Virginia, called the proceeding a “kangaroo court,” saying it was designed to result in a contempt citation from the start as a way to get at Mr. Obama. They and other Democrats complained that the panel was ignoring its mission of coming up with reforms, like finding ways to strength laws to combat gun trafficking along the Southwestern border. ” New York Times, Charlie Savage.
I mean invoke not evoke
anon, Guess you didn’t get the point. Since Fox nation refers to Obama as the “imperial president”, one would assume that he is constantly evoking “executive privilege”. Also, just maybe Issa is out of line. He has been on a “witch hunt” ever since he took charge of the committee.
Using Executive Privilege as an end run around Congressional oversight is a violation of the Separation of Powers Doctrine critically impairing the system of checks and balances our system depends upon and a sign that the Neocon agenda of creating a unitary executive is working out exactly as they planned: turning the Office of President in to a serial dictatorship. Such abuses of Executive Privilege are Constitutionally unacceptable no matter who does it.
“Swarthmore mom
1, June 20, 2012 at 12:52 pm
This is the first time Obama has used “executive privilege”. Bush used it six times, and Clinton used it fourteen times.”
So we’re good then, amirite?
It seems to be following the pattern of “recess appointments” and filibusters.
That is, seemingly one-of behaviors tend to become systemic in our current culture of government.
The list is long.
Take bully religion wars for example.
This is the first time Obama has used “executive privilege”. Bush used it six times, and Clinton used it fourteen times.