Congress, Constitutional Law, Courts, Criminal law, Politics, Society

Deliberative or Evasive? Obama Asserts Privilege Over “Fast and Furious”

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

236 thoughts on “Deliberative or Evasive? Obama Asserts Privilege Over “Fast and Furious””

  1. Anon, we don’t have to stop our idiotic bullying.
    We can bully you all we like even if you tell us to stop.
    We don’t have to find any examples of hatred of women to give us the right to bully you, because we can bully you WITHOUT having the right to bully you.

    Because We’re the Mommy. 🙂

  3. Noting she is a single issue voter, a single issue vagina voter, something encouraged by feminists, does not make me a misogynist.

    Repeat after me:

    Metonymy is not misogyny.
    Metonymy is not misogyny.
    Metonymy is not misogyny.

    Find some actual examples of hatred of women or stop your idiotic bullying.

  4. “So, no, you still remain a misogynist when you think a woman who is a single issue voter is voting with her Vagina.”

    Don’t be ridiculous. SwM tells us every chance she gets that Planned Parenthood endorsement is in her own words a dealbreaker for her.

    This makes her a single issue vagina voter, as endorsed by Eve Ensler herself.

  6. So, if I decide to vote for Romney am I still a vagina voter? After all, he would love to look into every aspect of my Vagina, from birth to death. No right to privacy under good ol’ Mitt. He is an expert at ruling over the Vagina, as are all good GOP members as well as the Teabaggers.

    The majority of Hillary supporters hated Sarah Palin. With a passion. Maybe a tiny minority voted for McCain out of spite, but most thought it was a dirty disgusting trick to think any one woman would be interchangeable with any other woman. Palin is the Queen of Right to Lifers, the Vagina inspection team.

    So, no, you still remain a misogynist when you think a woman who is a single issue voter is voting with her Vagina.
    Unless you also think a man who votes with the NRA is voting with his penis.

  9. http://www.salon.com/2004/06/11/ensler_3/

    Vote your vagina!
    Eve Ensler, the vulva-friendly playwright, hosts a fundraiser in New York in the hopes of getting young women to vote with their … well, you know.
    By Rebecca Traister

    Playwright Eve Ensler was in New York on Monday night. And you know what that means.

    Yup. The vaginas were flying.

  11. http://www.urbandictionary.com/define.php?term=Vagina%20vote

    A term used in the 2008 American Presidential election for former Hillary supporters who voted for McCain/Palin tandem on November 4, based on the fact that Palin is a woman.
    Hillarite: “Onooz, Hillary lost the primaries. But there’s this chick from Alaska. She is against everything I stand for, but I will vote for her anyways. She is a woman after all.”

    Informed voter: “So you are voting with your vagina? Vagina vote is unfeminist!”

  12. http://www.vday.org/archive/vote/ideas

    Wear your “Value Your Vagina—Vote!” shirt to work or school. Explain the vagina vote to everyone you meet.

    Monitor poling places to guard against voter intimidation. Wear your “Value Your Vagina—Vote!” t-shirt.

    Throw a house party in the evening and watch Election Day coverage with your V-Posse.

  13. http://www.youtube.com/watch?v=gFZ1Qzo_8gs

    Marianne Williamson, noted feminist and author appears on Daily Cafe, a daily live show with Retirement Living TV (www.rl.tv). She explains that she is voting for Barack Obama over Hillary Clinton as she says, “I’m not gonna vote with my vagina.”

  15. http://votewithyourvagina.com/

    “Honey, keep these cocks out of your box”
    “Get your Mitts off my hooha”
    “V – The right box”
    “Be a man – grow a pair of labia”
    “Use #VoteWithYourVagina when posting on the Tweeter.”

  16. “anon, Any one that has clue sees a huge red flag in Romney’s words. That is if one is at all concerned about the healthcare of poor women.”

    I think you’re right.

    You said what I quoted in a thread about how Obama uses drones to kill civilians in a “double tap”, and you responded by explaining how none of that matters to you except your concern about women’s health care issues.

    You proudly announced you are a single issue voter, and I wished you the best success with that and made it clear that all of your complaints about Obama and ANY OTHER ISSUE were now just examples of your stupidity, that you no longer had any moral or logical cause for outrage about Obama’s behavior since your sole announced criteria is Planned Parenthood endorsement.

    And I said the best way to get progress on all these issues was to make sure the Democratic Party couldn’t assume our votes were their’s because we have no place to go, To vote for third parties, to stop issuing dire warnings of doom and gloom if a Republican is elected, and to stop bullying people over their legitimate choices.

    And the response to that was MISOGYNY MISOGYNY MISOGYNY.

  17. anon, Any one that has clue sees a huge red flag in Romney’s words. That is if one is at all concerned about the healthcare of poor women.

  19. Swarthmore mom
    1, June 9, 2012 at 12:20 pm

    anon, Womem that are supporters of Planned Parenthood should rightfully be afraid of Rpmney. He has promised to “eliminate” it.

    anon
    1, June 9, 2012 at 12:26 pm

    Oh, I’m sorry SM, I momentarily forgot you were a single issue voter. Enjoy your win with Obama, hope that works out for you, and make sure everyone knows how you detest his foreign policy and other civil rights stances.

    “Swarthmore mom
    1, June 2, 2012 at 10:29 am

    One of the deal breakers for me is women’s rights and reproductive freedom. I find myself more and more aligned with Planned Parenthood. Planned Parenthood endorsed Obama the other day. That’s why I could never have never supported Ron Paul, and I can vote for Obama despite disagreement with him on some other issues.”

    “Swarthmore mom
    1, June 19, 2012 at 3:29 pm

    Even after all the puffery of the anti-Obama people, no one has changed their mind in this small blog group. I suppose it gets frustrating for those that want to skim off a percentage or two and guarantee a win for Romney. Most of the women will stick with the candidate that Planned Parenthood has endorsed, and so will the men that support them.”

    Anon:
    SwarthmoreMom is a special interest voter. She has repeatedly told us her one and sole criteria is Planned Parenthood endorsement. Special interest voters are dangerous in a two party system. It’s another reason not to favor two party systems or bullies.

    SwarthmoreMom doesn’t vote with her head.
    SwarthmoreMom doesn’t vote with her heart.
    SwarthmoreMom doesn’t vote with her stomach.
    SwarthmoreMom doesn’t let her dick do the thinking.
    SwarthmoreMom votes with her vagina.”

    Malisha, Swindler, Shano, et. al., RACISM!!!! YOU ARE A MISOGYNIST!!!!!!!!111!!!

  20. Anon, when you want to state in your own words and with your own “take” on things your own reason to vote for your own candidate of choice, fine, do it for whatever reason you like.

    When you start fussing about another person making a choice of whom to vote for by a standard that you would not use, and even by a standard you ABHOR, then your objections to THAT PERSON’S VOTING PROTOCOLS are certainly open for criticism.

    See, if you and someone else were running for office and I was a voter in that election, I could vote against you for the dumbest reason on earth; no justification is needed. I could be a uterus voter; I could be a flip-coin voter; the vote is mine to use and even to waste.

    So your tempest in a teapot about who votes for candidates based on what is really nonsensical; nobody needs a “good” reason — or, more particularly, a reason YOU find “good” — to vote for whomsoever.

    I have this on good authority from the Uterod.

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