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
Thank you for that reminder Mein Fuhrer, er, Mr. President.
I can walk!
rafflaw,
They don’t!
Mike Spindell needed to hijack the thread with yet another incoherent personal attack on me.
I’ve actually found much of the discussion in this thread interesting, and informative, apart from Mike’s sad sad need to misrepresent others.
I would be happy to get back to seeing what develops here.
Gentlemen! You can’t fight here, it’s the internet! t
Mike and rafflaw,
These are numerous reports that you could both look into if you were so inclined. I even heard them on NPR and I’m guessing you would both accept an NPR program as accurate. The words were that they would physically push him out of the way. You can research this if you have interest in facts. You can also research what Eric Holder was up to. The fact that neither of you have done this does not speak well of you.
Mike, As you know I was as critical of Bush and Cheney, Ashcroft, Gonzales, Mukasey as I am of Holder and Obama. You used to criticize all of them as well. So did we hate white people and a Hispanic person then?
The people who are not holding to a set of actual intellectual principles are both of you, not me.
raff,
If the information requested has probative value to ascertain the identity of those in the Executive or it sub-departments engaging in systematically punishing whistleblowers against Federal law, it is arguably not a valid exercise of Executive Privilege. The place to decide that is in court, not Think Progress.
Issa is just baling political hay. The R’s have only one issue. Our’s should be the opposite. All other issues can wait, even if I recognize the justice in them.
And a little imperial power is needed to counter the other two branches, right now.
Unfortunately, he has lousy judgement in his choices of front man Plouffe and his campaign manager.
He’s just trying to avoid getting the choice they offered JFK. Him or his kids. Am not kidding. Do you think the Bushes would blink. PapaDoc did not in -63. And Beorge 2 did not even blink when he got the news, what news?, he arranged it.
When you see what goes down daily in your lawyer life, how can you not believe in conspiracies on a higher level? You do you say, but you want your kids to have someone to pay for college. Understand that.
anon,
and how do these definitional spats relate to the issue at hand?
Misogyny is the hatred of women.
Metonymy is a figure of speech used in rhetoric in which a thing or concept is not called by its own name, but by the name of something intimately associated with that thing or concept.
Try to find examples of hatred of women, not love of english.
Where is your opinion of car thief Issa demanding documents from the Justice Department that would be ILLEGAL to turn over, such as wiretap info?
Issa should held in Contempt for issuing illegal requests for confidential documents.
Besides, the ATF ran Fast and Furious with the Justice Dept. signing off on “gunwalking” to identify the distribution network, but not signing off on 1,000s of weapons allowed to continue to Mexico. The ATF hasn’t had a permanent Director for years thanks to the toadies of the NRA, every single Republican in Congress.
Why didn’t you point out the obvious, that the President is reacting to car thief Issa’s Contempt of Congress move, not the original ridiculous request that Holder actually AGREED TO COMPLY WITH yesterday, just not any of the specifically prohibited by law documents.
” Most of the women will stick with the candidate that Planned Parenthood has endorsed, and so will the men that support them.”
“And you wonder why you’re called a vagina voter.”
Anon,
From you on the other Obama thread today, proof that you are a misogynist and so into it that you don’t even get you are”
“Once again I invite you to produce any evidence of misogyny on my part that are not obvious parody of feminist cant.”
Cf: patriarchy
Cf: special interest voters
Calling SwarthmoreMom a vagina voter since she admits she will only support Planned Parenthood endorsed candidates is an example of metonymy not misogyny.
But I wouldn’t expect a therapist to understand nuance. The rapists are normally associated with forcing their own points of view over society, bullying until it is becomes so, all the while declaring how independent and non-judgmental they are.
“Where are your facts that Holder is up to his neck in criminal activity???”
Raff,
He’s black, he works for Obama and Jill doesn’t like either of them. She don’t need no stinkin facts.
“Dick Cheney knew what was going on in his administration. The fact that Obama doesn’t know tells you someone else is calling the shots. I’m already terrified of the fact that we have a non-functioning govt. but I’d really like to know who is in charge because quite clearly, it isn’t Obama.”
Nice sally Jill, you’ve got him coming and going. He’s either a despicable man doing despicable things. Or in the alternative he’s an incompetent man allowing despicable things to happen. Buddy Roehmer, anyone?
Gene,
It is not an abuse of executive privilege. The Think Progress article that I quoted states that the claimed privilege is legitimate.
Jill,
Your comments about the killing of OBL are bogus. The numerous unnamed officials that you suggest would not have allowed the President to make the commander in chief decision? How could they stop him? What you are suggesting is against the information we have and against the commander in chief principle. Where are your facts that Holder is up to his neck in criminal activity???
“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….”
Woosty,
This was so on point it needs being repeated. We’ve lived under the pretense that the “Rule of Law” has existed in this Country since at least the beginning of the “Cold War”. Once the Communist “bogeyman” got raised after WWII, the M.I. Complex, which had grown during prosecution of WWII couldn’t bear to have themselves removed from the public teat and threatened anyone who disagreed with being deemed a traitor. After the Goldwater debacle in 1964 a good part of the 99% elite like the Koch Family, Mars Family, Welch Family, Mellon Family and others from within the ranks of the John Birch Society financed billions of dollars worth of propaganda to undermine the notion of Government on all fronts. To ignore this state of affairs just doesn’t jibe with the history we’ve lived.
n a party-line vote, the Republican majority on the House Oversight and Government Reform panel voted to approve the first contempt citation for a Cabinet member in 14 years. Amazing…………….I know what I think but I won’t play the card on here.
In addition to what Gene said there is another consistent pattern to this administration that is of great concern to me. JT writes: “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.” An actual, functioning president would have reviewed those documents. (He also would have fired Holder a long time ago.)
There are way too many reports of Obama not being in charge of much of anything. 1. the drone program. Yes, evidently he’s the killer in chief on one of them but there is another, much more secret program run by the CIA, OGA/private contractors that he has no oversight over. Why is that?
2. The killing of OBL. Yes, he’s getting political mileage out of that killing by his supportive murder groupies but if you really listen to accounts of what went on this fact will jump out at you. Numerous “intelligence” officials say they did not want him watching the raid and would have overridden any decision he might have made to stop it. If that doesn’t disturb you, you are not paying attention.
3. So here we have his AG up to his neck in illegal activity. Wouldn’t a functioning president want to know what the hell was going on?
There seems to be so much that Obama doesn’t want to know about, things that any person in charge, really in charge, not just a seat warmer, would know.
Dick Cheney knew what was going on in his administration. The fact that Obama doesn’t know tells you someone else is calling the shots. I’m already terrified of the fact that we have a non-functioning govt. but I’d really like to know who is in charge because quite clearly, it isn’t Obama.
raff,
How can abuse of Executive Privilege not be a Separation of Powers issue?
Attacking sitting Democratic Presidents is becoming quite the American pattern….maybe the whole political process has a ‘personality disorder’
Dredd,
I don’t know why you are being singled out for hijacking the thread(s) when you were not the first to change topics……
If I recall the germane issue is Holder…… Deliberately defying a properly issued congressional subpoena…… And Obama exerting the executive privilege…… This thread the got jacked about a known car thief, that turned thievery to his advantage……
You’re good…. Keep posting what it is you please…..
” Most of the women will stick with the candidate that Planned Parenthood has endorsed, and so will the men that support them.”
“And you wonder why you’re called a vagina voter.”
Anon,
From you on the other Obama thread today, proof that you are a misogynist and so into it that you don’t even get you are.