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
Gene,
I think you may be right to at least Truman.
Jill,
The comments you were suggesting to non-Obama supporters were the ones that were illegal, not Obama for going after OBL. The idea that I am scared of what you write is not only false, it is arrogant. See ya later.
A friend and I (two laypersons) broke a case of organized child abuse and abuser-protection in the Army, at Fort Benning Georgia, in the early 90s. The General in charge of social services for the whole Army demanded to see me at the Pentagon and his first (and last) question was: Where did I get the information. Of COURSE it was leaked to us, but I said that I took the Fifth and wouldn’t answer him. Just imagine. Somebody’s raping children on the base and the General wants to find out about the leak, not about the perp.
Mike, stand up to it, man. We vaginalists can breathe a sigh of relief when you take some of the flak and we can catch a break. C’mon, be our hero!
“Mike Spindell needed to hijack the thread with yet another incoherent personal attack on me.”
Pity the poor misogynist.
rafflaw,
I should have added that of course it would be illegal, that’s why I bring these things up. Illegality is running straight through all the three branches of this govt. In addition, there is a layer of illegality on top of this, the one that desperately needs our attention. You’re scared of what I wrote, and so am I. It’s not one instance and it has very dire implications for our nation. You can deny it because you don’t want to know about it or you can research it, it’s up to you.
http://www.washingtonian.com/blogs/capitalcomment/news-gossip/the-obama-administrations-war-on-information-leaks.php
“Based on the deep reporting on and documents from leak cases, it’s clear the government has made the electronic records of reporter-to-source communications the evidentiary centerpiece of its cases. But as another ex-senior official at the Justice Department told me, investigators have better tools to track those communications now—and, more important, better access to them. This person, who was a political appointee, also asked not to be identified. But he said that in many of the cases the government has prosecuted, electronic evidence of a relationship between reporter and source was at the heart of the cases.
I wrote in my book, The Watchers, about how the National Security Agency created “mirror” databases of telecom network traffic, essentially taking the records from companies like AT&T and putting them into a form that could be mined by the intelligence agency.
Two former NSA officials say they believe that capability has allowed the government to track reporters and their sources. Bill Binney and Kirk Wiebe helped the agency build information-collection and analysis tools. They were, in effect, data miners. They quit the agency after the 9/11 attacks because they thought NSA was designing systems that weren’t very good at catching unknown terrorists, but that would be very good for spying on known Americans and rapidly finding connections among people based on their communications.”
Obamas justice department is such a huge disappointment. Huge.
rafflaw,
I’m not asking you to believe anything. I’m asking you to research it for yourself. I told you one place, NPR, that I think you would find acceptable as a news source for what I said. I did not refer you to FOX newz. You should look it up.
raff,
Oh yeah, it absolutely predates the Lewinski years (:)). Arguably, I’d trace the abuse of EP back to Nixon, but you can make an argument for Johnson too. Maybe even Truman.
“I am not a fan of Geithner and I would love someone who would actually hold Wall Street accontable as opposed to one of their own protecting their own.”
But EVERYBODY in office is one of Wall Street’s own.
OS,
I am not a fan of Geithner and I would love someone who would actually hold Wall Street accontable as opposed to one of their own protecting their own.
Gene,
I agree that the Dems have brought some of this upon themselves, but this executive privilege issue predates the Lewinski years. (Lewinski years??? Scary!) 🙂
I had high hopes, but Eric Holder has been one of the biggest disappointments of all the administration appointments. Timothy Geithner is another disappointment, but his performance is much less surprising. Holder has surprised me.
shano,
Prof. Turley and Mespo and Mike A. are available if the President wants to change the AG! Three great candidates.
raff,
“I can’t believe that Issa does anything unless it is for partisan gain. It is against his DNA to do otherwise.”
And I don’t disagree with that. He a poster boy for what is wrong with partisan politics in America. However, that does not negate that his assertion of subpoena power is as arguably legally valid and (I think) probably more so than the President’s exercise of Executive Privilege in this instance. In the end, this is indicative of the illusion of choice that a two party system creates when mired in partisanship. The R’s like Issa are willing to use every tool at their disposal to get at the D’s and the D’s are unwilling to take the R’s to task properly (such as refusing to investigate/impeach/indict Bush Co.) because they fear R. retribution (whereas the R’s aren’t scared of the spineless D’s in the slightest). What should be a clear cut matter of law has been distorted in to a partisan issue by years of abuse of Privilege (and subpoena power for that matter – Monica Lewinski? Really?) that went unchecked by either party.
anon, are you a female or a male and what are you wearing?
Yep, still voting for Obama, but he should get someone better than Eric Holder who has allowed the Justice Dept. to get such a rabidly right wing reputation during this term in office- (shutting down medical marijuana, going after whistleblowers, the weird waffling on DADT and DOMA, etc) Just get rid of Eric and get someone tough with some real ethics in there.
How about Eliot Spitzer for AG?
anon,
sorry to hear about any visitation problems. Good luck with that.
Gene,
I have no problem with it going to court. That is something Issa doesn’t want. He may lose there and his only goal is embarrassment and the Fox News headlines of claims of illegality. We may just have to agree to disagree. I can’t believe that Issa does anything unless it is for partisan gain. It is against his DNA to do otherwise.
Jill,
Your NPR comments are unbelievable. How can any subordinate push the President out of the way on a military mission? What you are suggesting would be illegal, wouldn’t it? And didn’t he stick with the raid? Isn’t he the one who has authorized too many drone attacks against al-Qaeda officials? Why would any official think Obama would get in the way??
By the way, I have held Obama’s feet to the fire from day one when they took torture off the table. But I also can see what the Republicans are doing and why they are doing it. They announced it publicly and in secret meetings recently disclosed by the Draper book. So you can continue to call or suggest that I am an apologist, but the facts don’t support it.
Sigh, it’s been fun, but I have to run, it’s Wednesday and time for the ex to deny visitation once again.
On the other hand rafflaw,
“Calling SwarthmoreMom a vagina voter since she admits she will only support Planned Parenthood endorsed candidates is an example of metonymy not misogyny.”
That’s a pretty awesome comeback.