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, you remember what Mark Twain had to say about Congress. He observed that we had only one true criminal class in this country: Congress.
OS,
All in all, I will have to say at this point I’d rather have herpes.
Gene & shano:
I am pretty sure we have had this discussion before. In a recent poll, Congress had a lower approval rating than herpes. I do not agree with many polling results, but that one sounds about right. And the difference exceeded the Standard Error of Measurement as well.
It’s likely that the genesis of Fast & Furious was to create a case (or tragic events) that would advance gun control in the United States. If evidence of this motivation existed in the documents requested by Congress it makes political sense that the Executive would go to great lengths to restrict them, as they have done.
Darrell Issa Shows Contemptible Disregard for the Constitution
John Nichols on June 20, 2012
http://www.thenation.com/blog/168505/darrell-issa-shows-contemptible-disregard-constitution
Excerpt:
The system of checks and balances works best when the separate branches of government are inherently and proudly adversarial toward one another. But that can’t happen when partisanship defines when and how accountability moments play out.
House Oversight and Government Reform Committee chairman Darrell Issa — the headline-hungry California Republican who on Wednesday engineered a committee vote to hold Attorney General Eric Holder in contempt — forgot that essential rule.
He failed to build a credible case or a credible coalition for his initiative. After a day of increasingly ridiculous posturing, Issa secured the contempt citation he sought. But is came on a straight party-line vote that rendered the decision all but meaningless.
The chairman’s heavy-handed style invoted the reproach that the contempt vote was “nothing more than a political witch hunt,” as People for the American Way president Michael Keegan termed it.
“To be sure, Congress has a legitimate interest in investigating Operation Fast and Furious, but Chairman Issa and Republican majority on the Committee appear to be more interested in scoring political points than in getting to the bottom of what happened,” argued Keegan, who added that, “The hoops the Committee is demanding the Attorney General jump through illustrate that these contempt hearings are as partisan as they are extreme. Over the course of this ‘investigation,’ the Committee has ordered the A.G. to produce documents whose confidentiality is protected by federal law, has refused to subpoena Bush Administration officials to testify about their knowledge of the operation during their time in office, has refused to allow public testimony from officials whose testimony counters Issa’s partisan narrative, and has repeatedly rejected the A.G.’s efforts to accommodate the committee, making compliance all but impossible.”
Issa’s actions undermined not just his own credibility but any sense that he and his allies might be acting in defense of — or with any regard for — the Constitution.
There is no reason to suggest that Holder is above criticism for his actions as Attorney General. He has been called out by Democrats as well as Republicans on a variety of issues. And he has not always managed his response to Issa’s abuses well. Nor should anyone who vaiues transparency and government oversight be pleased when a president determines that it is necessary to invoke “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.
http://youtu.be/9vHiZvRoHyo
Nancy Pelosi Slams Contempt Vote: ‘I Could Have Arrested Karl Rove … But We Didn’t’ [UPDATE]
You don’t say, Nancy!
That’s admitting you (and others) committed malfeasance of office.
—————————————
I remember the zeitgeist…people and Dems were just about begging for renewed civility and non-partisan behavior. As usual, the Dems held out an olive branch and the repugs spit on it. And now they doing it again….
Jill,
I’ve heard plenty of people on the right on NPR. Just last night I had to turn off “The Commonwealth Club” who had some guy from CA right wing talk radio for the hour. So if you’ve got it – just give us the link so we can see who said what that will support your argument.
Gene sure most people feel this way about Congress. Fed up since corporations became Multinational corporations that have more wealth than most nation states. They own our government.
So now we have to rely on the people who are slurping up the gravy to turn off the gravy spigot.
Nancy Pelosi Slams Contempt Vote: ‘I Could Have Arrested Karl Rove … But We Didn’t’ [UPDATE]
You don’t say, Nancy!
That’s admitting you (and others) committed malfeasance of office.
You pencil necks in Congress need to start working for the best interests of ALL Americans, not just yourself, all your political playmates and graft money of lobbyists.
You’ll get no tears from me because you don’t have the spine to do the right thing by the rule of law.
I’m fresh out of crocodiles to squeeze them out of.
He’s got a good Secretary of State, but yeah, corrupt immoral incompetent jackasses at Treasury, AG, and Homeland Security
Someone should go back and see what the Turley regulars wrote when they needed to whitewash Geithner and his taxes. Probably entrapped by Darrell Issa.
Good chef too, or so I’m told.
I must agree with Elaine about Summers and Geithner and wrote about it when they were appointed. As I remember it in one comment I listed the White House number and urged people to call prior to their appointment. I don’t know what got into me since I was so hypnotised by Obama’s rhetoric.
“Otteray & Blouise,
I never had high hopes for Geithner. I was disappointed when Obama choose him to serve as Treasury Secretary. I felt bringing him and Larry Summers into the Administration was a bad omen.” (Elaine)
Geithner and Summers proved to be exactly what we expected … an early sign, along with that sophomoric Beerfest in the Rose Garden, that Obama was not going to live up to the rhetoric.
The National Rifle Association supports the contempt resolution and announced Wednesday that it would score the vote, which will affect how the powerful gun lobby ranks and endorses lawmakers.
Now there’s a real surprise 😈
rcampbell,
Ol’ Scratch might not let Issa into hell. He won’t want the competition.
Otteray & Blouise,
I never had high hopes for Geithner. I was disappointed when Obama choose him to serve as Treasury Secretary. I felt bringing him and Larry Summers into the Administration was a bad omen.
“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.” (OS)
My sentiments, exactly.
House GOP Leadership Balks At Issa’s Anti-Holder Witchhunt
By Ian Millhiser on May 10, 2012
http://thinkprogress.org/justice/2012/05/10/481718/house-gop-leadership-balks-at-issas-anti-holder-witchhunt/
I tend to avoid the comments section on this site (and the site in general on weekends) like the plague for one reason and one reason only. I don’t even agree on Turley with some things but he makes a dedicated effort to evaluate matters from a relatively neutral perspective while applying his understanding of the law and I respect that and his insight.
The comments on the other hand take about 2 seconds to degenerate into partisan bylines, ad hominem attacks, straw man arguments, group think and pretty much every other amateur debating tactic.
Add in the level of smugness and utter arrogance some people here possess and this place becomes no better than a youtube comments section.
For a libertarian, liberals vs. conservatives is like Aliens vs. Predators. No matter who wins, we lose.
Exec privilege: libs like and cons hate when protecting Holder. Opposite true for Gonzalez.
State rights: cons like and libs hate when banning gay marriage. Opposite true for banning guns.
Billionaire activists: libs like and cons hate when Soros. Opposite true for Kochs.
Protests: cons like and libs hate when tea party. Opposite true for occupy.
Product bans: libs like and cons hate when soda. Opposite true for pot.
Using military without Congress: cons like and libs hate when Iraq. Opposite true when Libya.
Leaks: libs like and cons hate when Seals. Opposite true for Plame.
Calling people on the other side of the fence extremists when you are polar opposites despite that logically meaning you too are an extremist… oh, wait. They both like that.
May Darrel Issa rot in hell.
“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.”
So Jill,
That means you have no evidence but what you’ve heard. For someone who is always making charges one would think you’d have the backup at your fingertips, but you don’t do you? As to NPR why would I accept them as authoritative? They are merely another Corporatist controlled outlet like PBS.
http://jonathanturley.org/2012/04/28/pbs-why-i-watch-but-dont-contribute/#more-48384
“You can deny it because you don’t want to know about it or you can research it, it’s up to you.”
Keep thinking you are smarter and more perceptive than anyone else Jill, it is you M.O. Why I’m such a believer in the Kool Aid that I wrote this:
http://jonathanturley.org/2012/03/17/a-real-history-of-the-last-sixty-two-years/
Now I gave thirteen reasons above why I am voting for Obama and guess what none of them were about his being independent of Corporate influence.
You see Jill one of the things that I see in your writing is an overwhelming interest in foreign affairs. Compelling as that interest might be, I see little solidarity in your writing with the 99% of this country for who life has gotten worse and for which life will further deteriorate when Mitt Romney wins the election. Ah….but then Jill you’ll decry Romney, just as you did Bush, but in all your writing production not once have you offered any solution except a protest vote which gains nothing but lets you feel all warm and fuzzy about your integrity. People without jobs, women oppressed, LBGT people discriminated against arouse little in you, judging from your writings, but your sympathy goes out to Osama Bin Laden.
“The people who are not holding to a set of actual intellectual principles are both of you, not me.”
Jill, quite frankly you having any principles except for feeling that you are a principled person, is shattered by your inability to supply sources for your assertions.