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
The party line vote to hold Attorney General Eric Holder in contempt of Congress for a disagreement over documents related to Fast and Furious was 23-17.
Gene,
This isn’t a Separation of Powers issue because the request is a bogus one from a partisan hack. This is just an additional part of the Republican plan prior to the election.
Well said Mike. I got the same Moveon email. I didn’t give them a reason for my answer.
“Holder is a flawed player, and he has not managed his response to Issa’s abuses well. And no one should be pleased to see a president invoking “executive privilege” in a fight with Congress, as Barack Obama has done to thwart Issa’s demands.
But it is Issa whose actions have been contemptible. He is demanding deliberative documents that are ordinarily off-limits to Congress, a big ask, yet he has not built a credible coalition of supporters for the demand. And when the details of the documents and the issues involved are laid out — along with the offers by Holder to brief the committee — it quickly becomes evident that the committee chairman is so unwilling to compromise that he won’t take yes for an answer.
Issa has failed to respect the House as an institution, or to make even the most basic moves to organize the chamber for a challenge to the executive branch. Instead, he’s gone to hyper-partisan and divisive extreme, redesigning the Oversight Committee’s website to look like a Fox News “alert” — with dubious images of Holder and headlines reading “Contempt” splashed all over the page.” John Nichols the “Nation”.
“Was Issa lying when he claimed that the Bush adminstration officials didn’t have to comply with committee requests during the Bush days,”
Yes, he was.
His personal (and partisan) failings don’t justify dismantling the Separation of Powers Doctrine just because his guy got away with it.
Letting “their guy” get away with malfeasance in office is part and parcel of the problem with a two party locked in system.
http://www.thenation.com/blog/168505/darrell-issas-contemptable-disregard-constitution# Although Kucinich has been critical of Holder in the past, he is no longer at Issa’s side.
Jeez, I
hatefind really funny these threads where anon thinks he’s actually invisible and fools anybody.It makes me laugh and laugh.
Since myself, SwM and Raff keep being called Obama apologists and partisans, let me share a response to a question I was asked by MoveOn today as to why I will vote for him.
“Barack Obama has disappointed me in many ways. He has not been the spokesman for Progressive politics that I imagined he would be. His initial time spent on bi-partisanship showed a naive understanding of our current political situation. His absolution of the possible crimes of the previous administration was disturbing. His furtherance of the repressive intelligence initiatives of the previous administration was alarming. His continuing of our involvement in Iraq and Afghanistan was just plain wrong. His not initially demanding single-payer healthcare showed a lack of foresight in negotiation. His appointment of Tim Geithner at treasury was wrong and as we have seen Holder has not covered himself with glory as the AG. I could go on and on in this vein, but you [MoveOn] already know the points I am making.
However, now let us put all of our disappointments with the President into perspective. I have been involved in Left Wing politics since I came of age in the 60’s. As I’ve aged into an old codger, my commitment to social change and fairness has not diminished one bit, as you can discern from Googling my guest blogs at Jonathanturley.org. Nevertheless, if we don’t learn from our experiences, we cease to grow emotionally and intellectually.
While a minor member of the 60’s Movement I saw how some of our leaders, rapt with their own self-importance, led us (me included) down the garden path of political perfectionism, making assumptions not borne out by the history they had lived through. We saw the assassinations of JFK, RFK, MLK and many others without acknowledging the possibility that our leaders were being constricted in their options from behind the scenes. We know now that untold millions have been funneled into a decades long blitz of political propaganda dedicated to creating false memes about the nature of our government. So many of us on the Left gleefully watched as we caused chaos in the Chicago Convention and then sat on our hands as Nixon won the Presidency from Humphrey who as a senator had a distinguished and brave career. By doing that we definitely prolonged the war for seven more years and greatly increased the carnage of both Southeast Asians and our own troops, who had been sacrificed in the name of a “Domino Theory” that history has proven false. If you’ve read the book “Nixonland” by Rick Perlstein you’ll know exactly where I’m coming from, since I lived what he talks about.
President Obama has been consistently attacked by “progressive purists” for not meeting up to their personal expectations, even though many never expected much from him in the first place. Politics in human history has always been a rough game, yet somehow given all the Congressional limitations faced, the amount of money arrayed against the President and the almost complete corporate control of the media, Obama is being blamed for not doing enough and or doing the wrong things. Since I wouldn’t be writing you [MoveO] if you already didn’t understand the problems he faced I won’t bother to iterate them. However, let me list the reasons to vote for the President, stating my personal belief that if Romney wins the Congress goes with him.
If Romney Wins this is what will be lost:
1. The next SCOTUS appointments.
2. Women’s Rights, including freedom of choice.
3. LBGT Rights and freedom from oppression.
4. Separation of Church and State.
5. Our Social Safety Net, including Social Security, Health Care, Welfare and UIB.
6. Any environmental protections, as weak as they are.
7. The right of labor to organize and protect its workers.
8. Any Protections against the incursion of our civil liberties.
9. Any regulatory oversight of the financial entrepreneurs who have wrecked our economy.
10. Any check on the outrageous spending for the M.I. Complex.
11. Any check on the unconstitutional behavior of our intelligence community.
12. Any concept in fairness in our tax system.
13. Any hope that the wealth gap between the 1% and the 99% will be diminished.
I could list a hundred reasons, but with these 13 above, need I say more?”
Gene,
Issa has received thousands of documents and he won’t be satisfied until he gets Obama on the stand at his committee. It isn’t a matter of hiding criminals. It is a matter of making non-criminals look like criminals for partisan purposes. Was Issa lying when he claimed that the Bush adminstration officials didn’t have to comply with committee requests during the Bush days, or is he lying now? I say he is a consistent liar.
Where are the JOBS ????????
Oh my bad and I thought these people were looking out for our interest,silly me.
Jeez I hate these threads where Gene Howington and I are taking the same side.
It does make me go back and triple check my calculations.
Raff, you had me at “Darryl Issa is dirty…” That crooked used-car dealer is on my (very short) list of completely evil people.
Nal’s quote hardly sounds like fishing to me, raff.
I don’t question that Issa is a partisan hack, but privilege was not intended to protect criminals.
“5. A Blogwhore is an anonymous poster …”
It’s amusing how often my “anon” comes up as a beef for Mike. I’m about as anonymous as SwarthmoreMom, Woosty, Blouise, Bron, Otteray Scribe, there have been maybe half a dozen occurrences that anyone else has used “anon” in a thread I’ve posted on.
It goes to show how empty the theories of our elderly therapist is and how imperceptive he has been.
But keep tilting at those whiskey bottles Mike!
From the RESOLUTION (pdf):
Additionally, these documents will reveal the identities of
Department officials who orchestrated various forms of retaliation against the
whistleblowers.
This one really sticks in my craw.
“Once again I invite you to produce any evidence of misogyny on my part that are not obvious parody of feminist cant.”
Anon,
It has been produced and you know it. You are simply not that important for me to again prove what everyone here knows is true.”
Once again the therapist comes up short, then runs and hides.
Anon 🙂
Gene,
I understand what you are saying, but this is not a valid investigation on Issa’s part. Review the letter from the Justice Department and look at what they provided and what they offered to provide and you can see that Issa is just fishing. The claim of privilege is a legal claim. I don’t like having to use it, but it is as legal as Issa’s fishing expedition.
“Once again I invite you to produce any evidence of misogyny on my part that are not obvious parody of feminist cant.”
Anon,
It has been produced and you know it. You are simply not that important for me to again prove what everyone here knows is true.
“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.”
Yeah, that’s pretty funny.
Once again I invite you to produce any evidence of misogyny on my part that are not obvious parody of feminist cant.
rafflaw
1, June 20, 2012 at 3:30 pm
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
————————
me too….
“The congress could move to impeach the President over this.”
—————————————————
BWAHAHAHAHAHAHAHAHHAHAHHAHAHHAHAHHAHAAAA!!!
I don’t think so.
He kept his pants on the WHOLE time.
…and no 3rd World Nation was invaded during the filming of this executive decision….
“If it was good for Reagan and Both Bushes, why isn’t it good for Obama?”
The point is that it wasn’t, raff. Reagan abused Executive Privilege to protect the criminals in government behind the Iran-Contra affair and the Bush’s? Do I really need to spell out their abuses of Executive Privilege? If Congress were properly doing their job and not getting railroaded by an increasingly unitary Executive, Bush I would have never made it to the Oval Office because he and Ollie North would be sharing a jail cell and the Bush II/Cheney criminal conspiracy would have been impeached and prosecuted for their various offenses before they left office. Allowing the abuse of Executive Privilege led to things like the ever increasing assertion of unitary executive power through mechanisms like signing statements.