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
Tony C.,
If the Justice Department was witholding documents from a truly non-partisan investigation, then I would agree that the privilege claim was excessive. Nothing Issa does is non-partisan.
over 7000 documents and they wanted more?
but no one has the time to read the bills….
what ever happened to Cheneys subpeonaed papers? as he held in contempt? (I mean formally….)
This goes beyond we can do it because they did it…this is crap behaviour supporting partisan power grabbing and undermining the CURRENT office.
I don’t think people realize how lucky they are that Obama is in that seat and not some republican big business puppet….you can’t keep saying there are laws and checks and balances if they have been ignored by so many others….the laws don’t exist. The checks and balances were dismantled and ignored and the ignoring was ignored….long ago….
these hysterics are silly and impotent….
Darrell Issa is dirty and his claim that Holder has not been forthcoming are ridiculous. Here is an explanation of why Obama elected to exert the claim of executive privilege and which type of privilege he is claiming, from Think Progress: “But there are two types of executive privilege: the robust “presidential communications privilege” and the more limited “deliberative process privilege.” The White House may invoke the latter to apply to executive branch officials outside of the president’s inner circle, as long as they were involved with the government’s decision-making process. Presidents Ronald Reagan, George H.W. Bush, and George W. Bush all asserted executive privilege in matters not involving presidential communications. And Bush Administration Attorney General Michael Mukasey invoked the same “deliberative process privilege” as recently as 2008, rejecting congressional subpoenas for reports of Department of Justice interviews with the White House staff regarding the Valerie Plame Wilson identify leak investigation.
Furthermore, the very man behind the witch-hunt against Holder, Chairman Darrell Issa (R-CA), has in the past recognized that same privilege for Bush administration deliberations.
In a May 2008 hearing, then-Ranking Minority Member Issa defended Bush EPA Administrator Stephen Johnson’s right not to answer questions, comparing her deliberations to the “speech and debate” protections enjoyed by Congress:
‘ So it probably shouldn’t come as a surprise – or it should come as a surprise to you that we are surprised that you are not going to tell us whether or not there were conversations within the executive branch that led to your independent decision.’ ”
If it was good for Reagan and Both Bushes, why isn’t it good for Obama?
“Besides, it was pretty much the founder’s intent to pit one branch against the other, legislating was never intended to be a cakewalk for anybody.”
The very nature of checks and balances.
If you have witches, a witch hunt isn’t a bad idea!
I do not think I care about Issa’s motivations, if he is acting within legal bounds (and as far as I can tell he is) and targeting actual wrong-doing (which I think he is) then his motivations, emotions and any political gain are pretty much irrelevant.
Besides, it was pretty much the founder’s intent to pit one branch against the other, legislating was never intended to be a cakewalk for anybody.
“if he is acting within legal bounds (and as far as I can tell he is) and targeting actual wrong-doing (which I think he is) then his motivations, emotions and any political gain are pretty much irrelevant”
Tony,
Back in the 40’s and 50’s HUAC was certainly acting within its legal bounds when it persecuted “communists” as was Congress when they impeached Clinton.
“Might as well stop trying to convince Swarthmore mom. She is completely compartmentalized and seems to buy hook line and sinker into the whole Republican v. Democrat false paradigm.”
Neil,
Might as well not bother actually reading what SwM has written about this election because your opinion trumps the facts, doesn’t it?
“The congress could move to impeach the President over this. He is thumbing his nose at them now. If they let him get away with this behavior, it is a message that they are going to be assuming more of a ceremonial/accomodative role in the future, and not so much one of balancing power.”
Nothing like supposedly defending the Rule of Law by going to the extremes like impeachment. Who are you voting for Neil?
Might as well stop trying to convince Swarthmore mom. She is completely compartmentalized and seems to buy hook line and sinker into the whole Republican v. Democrat false paradigm. In her world, Obama and the Dems are always right and Fox News and the Republicans are always wrong. Kind of like rooting for your favoriet football team, no matter what.
Even when you point out, as Gene did, that Issa’s bad character is a non-issue because it has nothing to do with the fact that Obama is attempting to essentially thwart the checks and balances of our government with this stunt, she continues to post Issa’s sordid alleged criminal past. We already know Issa’s an alleged criminal Swarthmore, but that has nothing to do with the legitimacy of congressional oversight of executive agencies.
The congress could move to impeach the President over this. He is thumbing his nose at them now. If they let him get away with this behavior, it is a message that they are going to be assuming more of a ceremonial/accomodative role in the future, and not so much one of balancing power.
“1. Blogwhore 24 up, 2 down
A person (usually dopey) who participates in all or most of the following:”
Anon,
You missed a fifth category:
5. A Blogwhore is an anonymous poster who suffered a reversal with a woman and so misogynistic-ally vents his hatred against women at every opportunity.
I keep telling Obama to fire Eric Holder, but he does not listen
anon, as if Planned Parenthood has anything to do with Fast & Furious. I live in Az., and let me tell you, this program should have been shut down a LONG TIME ago. Obama should have shut down this Bush program.
Weapon manufacturers were the only beneficiaries. It put every person in border states in harms way. The NRA would love for this to become public policy- hey Mexico! Come and get all the guns you want!
“We need to remember that Darrell Issa is not on Planned Parenthood’s endorsed list of candidates, this means President Obama gets a pass.”
Anon,
We must remember also that you are a misogynist with an actual (in your mind at least) grievance against women, lawyers and courts.
anon, I am against the idea of executive privilege but considering Issa’s own lack of honesty in the past and his extreme partisan nature, just maybe, Obama needed to do this.
http://www.urbandictionary.com/define.php?term=blogwhore
1. Blogwhore 24 up, 2 down
A person (usually dopey) who participates in all or most of the following:
1. Spending large amounts of time posting entries on his/her blog (usually a blogspot or wordpress blog) about things no one other than them cares about.
2. Tries any way possible to get others to read his/her blog.
3. Posts comments on every blog he/she comes across in hopes that other bloggers will find and comment on his/her blog.
4. Uses their blog to advance other areas of his/her life, such as relationships, positions in work, social status, or anything else.
Blogwhores can come in different categories, the most notable of these include:
– The activist blogwhore, who will post about 20 entries a day revolving around news articles which support his/her political views and/or desperately crying for others to care about his/her favorite political cause.
– The gamer blogwhore, who posts a new entry every time he/she advances in an online game or MMORPG.
– The slutty blogwhore, whose posts are just images of her showing her assets to any willing male.
– The homeschool mom blogwhore, who truly believes others think her kids are as valuable members of society as she does and posts in the mindframe as such.
– The Jesusfreak blogwhore, whose posts are mainly Bible entries or what he/sh…
Darrell Issa is perhaps the most sleazy member of Congress as SwM details in part above. He NEVER does anything that isn’t political and so I don’t give a damn what this hearing is about, its’ purpose is the Presidential Campaign.
http://www.urbandictionary.com/define.php?term=blog%20whoring
We need to remember that Darrell Issa is not on Planned Parenthood’s endorsed list of candidates, this means President Obama gets a pass.
“Take bully religion wars for example.”
Dredd seriously, it is annoying that you post the first or second comments on each thread and use it as self promotion for your blog. While you write well and we agree o many issues, this gets tiresome. Every issue is not about you, you know and I seriously doubt that you’ve actually written a piece on every issue that comes up. You’re welcome to do it here, but you lose credibility with me at least. Surely there are other ways you can promote yourself.
“Issa made his fortune building and selling Viper car alarms. He is the wealthiest member of Congress, worth as much as $450 million. In fact, it’s Issa’s voice on the popular alarm’s signature warning to would-be thieves: “Protected by Viper. Stand back.”
What’s less well known is how Issa got into car alarms in the first place.
“For years I used to tell everyone that I went into it because my brother was a car thief. Then they found out when I ran for office my brother did spend time in prison as a car thief, and it ruined the whole joke I’d had for 20 years in business,” Issa said during an interview with WhoRunsGov.
Issa himself was accused several times of auto theft. In the early 1970s, he and his brother were arrested after police suspected them of stealing a Maserati sports car from a dealership in Cleveland. Issa says the police mistook his identity, and the charges were later dismissed.
Another time, Issa was arrested and eventually pleaded guilty to carrying a concealed weapon. Police found a handgun and a tear-gas gun — plus ammunition for both — in Issa’s glove compartment.” NPR
“There should be no executive privilege. The deliberations of our Congress, Supreme Court and president should always be fully open to the public so that we can understand what these people are doing and why. But until we reach that point, the Issa committee like all other such investigations of one branch by the other are highly political and should be acknowledged as such.” Rabbi Michael Lerner. …. I agree.
Blouise, how did we let the NRA take over most of the Congress? good god, as if weapons manufacturers needed help selling their products. greed greed and more greed.
GeebaGeeba too harsh and off topic and wrong about the birth control insurance issue. I will bet you are a man? do I win?
That Issa is a partisan schmuck is tangential to the issue of the abuse of Executive Privilege to circumvent Constitutionally valid Congressional oversight that both parties have abused in trying to create a unitary executive. The sauce that is good for the goose is good for the gander.