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. In all truthfulness, I won’t make the edit simply because you want me to, Flounder. Call it an exercise in spite.

    And thanks for again displaying that you have no idea what the difference between a rhetorical device and the intent behind it, which in your case is misogynistic raving. Saying it is parody is sadly no better defense either. Parody is a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule. You aren’t funny (at least not intentionally) and ridiculing women because they are women is exactly what misogynists do so once again you are hoist upon your own ignorant petard.

    Anyone caring to research beyond Wiki into the distinction between motonymy and senecdoche can verify what I say is true and I invite them to do so. Anyone paying attention can tell you are a misogynist, no special skills or research required. It’s what we call “manifest”.

  2. No. If I was interested in editing Wikipedia, I’d make the edit, Flounder. The bottom line is there is nothing substantively wrong with the Wiki its not substantively different from what I am saying. The flaw is in your understanding which led you to use an imprecise term in trying to rationalize the behavior everyone but you seems to recognize as misogynistic. Had you used the precise and more accurate term – synecdoche – you wouldn’t have had the wiggle room for claims of your innocence a broader term provided. You tried a semantic argument to justify the valid criticism that your statements were misogynistic and it failed because 1) it was a ridiculous and blatant attempt at evasion and 2) it wasn’t a precisely correct semantic argument so when the precise term was applied it served to highlight your misogyny.

    Bah.

    You won’t make the edit because you know you’re wrong.

    You won’t acknowledge you’re wrong because you’re an arrogant lawyer.

    And all that aside,

    Synecdoche is not misogyny either.

    Vagina voter is a term that feminists wave proudly.
    SwarthmoreMom over and over and over tells us that her one deal breaker, the one thing she demands of a candidate is a Planned Parenthood endorsement.

    This clearly makes her a single issue vagina voter.

    There is no misogyny in noting that, just as there is no anti-semitism in noting someone demands a candidate support Israel, no anti-gunism in noting a person demands an NRA endorsement.

    And the other fact is that Mike Swindell, the rapist, had nothing when he called my noting of SwarthmoreMom’s single issue vagina vote misogyny.

    None of you can find any actual examples of misogny, instead you talk of vibes and emanations that you state you can pick up across the Internet.

    If you had any guts or confidence in your position you would make the wikipedia edit that you insist is correct, but you’re a coward and a liar Gene.

    Metonymy is not misogyny
    Synecdoche is not misogyny

    SwarthmoreMom should wave her vagina vote proudly and buy any of those t shirts, bumper stickers, coffee cups, purses that I found so quickly.

    If you can find some evidence of misogyny that isn’t a clear parody of feminist cant, you just feel free to point that out.

    You got nothing, kiddo.

  3. No. If I was interested in editing Wikipedia, I’d make the edit, Flounder. The bottom line is there is nothing substantively wrong with the Wiki its not substantively different from what I am saying. The flaw is in your understanding which led you to use an imprecise term in trying to rationalize the behavior everyone but you seems to recognize as misogynistic. Had you used the precise and more accurate term – synecdoche – you wouldn’t have had the wiggle room for claims of your innocence a broader term provided. You tried a semantic argument to justify the valid criticism that your statements were misogynistic and it failed because 1) it was a ridiculous and blatant attempt at evasion and 2) it wasn’t a precisely correct semantic argument so when the precise term was applied it served to highlight your misogyny.

    Yep.

    It sucks to be you, Flounder.

  4. If you had the facts or the law on your side Gene, you’d pound the law and make the edit.

    If you had any integrity, you’d pound the table and acknowledge your mistake.

    Since you are reduced to name calling, we can see you’re pounding your lap (again.)

  5. Once more

    “Any American who understands how Planned Parenthood helps all women would not be against it. ”

    Where did I say I was against Planned Parenthood?

    And I think the word that Rush Limbug ruined famously is feminazi, not feminista, which is a hip edgy word feminists used in reference to themselves to portray themselves as urban fighters against the man.

    You can show this to yourself by comparing the google search of

    https://www.google.com/search?q=rush+limbaugh+feminazi

    with

    http://www.google.com search?q=rush+limbaugh+feminista

    (sorry, trying to avoid the spam filter)

    But just do the search and compare.

    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.

    Come on Shano, stop flailing, you and Gene are going to give each other a black eye.

  6. yea, but like n*gger, this is a word that can only be used correctly by the Uterati.

    Rush Limpballs has also wrecked the usage. Just stop trying to defend yourself.

    Any American who understands how Planned Parenthood helps all women would not be against it. What happened? Did some woman have a D&C without your permission? oh boo hoo for you. boo hoo. get over it.

  7. http://www.depauw.edu/orgs/feminista/

    Welcome to the fierce, feisty, and fabulous Feminista! page!

    We the womyn of Feminista! aim to bring about positive reform to the world starting at DePauw University. We are usually busy trying to stomp down intersecting oppression of all kinds and empowHER other womyn to do the same. On our free time we are the life of the party! We are just like you and you are just like us so let’s get together and make this world a better place!

    About Feminista!
    All women and women lovers welcome!

    Mission:
    Feminista! was founded upon the principle that women’s right are human rights! A non-hierarchical organization that explores member’s individual feminisms! Feminista! is a multicultural activist organization dedicated to social justice for ALL that works at transforming DePauw’s campus to become a more safe pro-women space by bring women’s issues and concerns to the forefront.

  8. http://ukfeminista.org.uk/

    Our Vision

    UK Feminista’s vision is a world where women enjoy all the rights enshrined in CEDAW – the Convention on the Elimination of All Forms of Discrimination against Women – otherwise known as the ‘women’s bill of rights’.

  9. ““Post @ 3:28: Feminsitas” anon
    This is the secret code, the ‘tell’ as it were.”

    What are you talking about?

    https://www.google.com/search?q=feminista

    urbandictionary: define.php?term=feminista

    1. feminista 129 up, 51 down
    A modern feminist. One that shows traits belonging to nu and old school feminist thought while exhibiting a hipster-like fashion consciousness that was not present in the last generation of feminists.
    She is such a feminista.

    2. feminista 16 up, 7 down
    A third wave feminist. A woman (or man) who actively supports the rights of women in all arenas, regardless of multiple definitions or stereotypes of femininity. Supporting women’s right to choose to be whatever it is that they desire, whether that is a mother, banker, artist, doctor, teacher, lawyer – or all of the above. A feminista is not necessarily “that girl from women’s studies who can’t get a date” or inherently unattractive in any way. She (or he!) is many things or anything, so long as that person actively supports a woman’s right to have the opportunity to do anything she imagines, without societal, cultural, religious and especially political laws or preconceptions limiting her potential. A feminista also supports women’s reproductive rights.

  10. anon,

    Lap pounding and hating on women . . . you really don’t know how transparent you are, do you? That or you have anosognosia.

    Go on.

    Look it up and fail to understand that word as well.

  11. “Post @ 3:28: Feminsitas” anon
    This is the secret code, the ‘tell’ as it were.

    All Uterati can de-code this language.

    Sucks to be you, anon.

    And Romney sucks a billion times worse than Obama,
    for any (sane) single issue voter, no doubt about that either.

  12. Such an easy edit to make to.

    I encourage you to correct the wikipedia entry for metonymy, generations will thank you.

  13. Pete, actually, the clarinet was my instrument when I was younger and my fingers more nimble. 🙂
    ==========

    The vids are outstanding guys! Thanks for the entertainment.

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