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,

    “I’ve never held out just one group to this criticism. Look up and down this thread and others where it is single issue groups that come under criticism. ”

    I’ll call your bluff. Here are the groups you’ve discussed in your comments.

    Post @ 3:15:Planned parenthood
    Post @ 3:39:Feminists
    Post @ 4:50: “vagina voters” (Or something, it’s not really clear what group you’re calling rapists, maybe you’re really talking about rapists)
    Post @ 1:36: The Democratic party, but because they bully people with racism and… wait for it… feminist issues.
    Post @ 3:28: Feminsitas

    Then there’s a whole slew of posts about people who are voting about a single issues, which are all (shockingly) aimed at women.

    So, yeah, I’d say you only seem to be complaining about one group.

  2. “:Fully 75% of your comments cast aspersions on women one way or another. The hysteria evident in your thought processes as you commented 23 times between 5:42 and 7:18 pm, endlessly droning on about women voting with their vagina’s is the mark of a disturbed man who feels women have done him wrong.”

    Spoken with the authority, confidence, ignorance and nonsense of a true the rapist.

    It is clear why I commented 23 times, each with an example of a feminist using the metonym “vagina vote”, that was to counter your original uninformed bullshit claim that the metonym “vagina vote” was defacto misogyny.

    “Sometimes men do get screwed in marriage, but most times they get exactly what they deserve. The only problem being that they don’t have enough insight into themselves to accept any responsibility for getting screwed. ”

    And this speaks to your bias, your self-loathing, why you would be dangerous to license as the rapist.

    “Frankly I don’t give a damn how unfair your divorce was, because you have chosen to turn your hate into a crusade against women.””

    You toss these words around, but you’ve shown no ability when asked to demonstrate any of this. My crusade against women? Where is that?

    Noting that SwM is a vagina voter, pointing out her many proud statements of that, describing why that is a poor strategy for her to take if she holds the views towards Obama’s behavior re: civil liberties that she claims to hardly amounts to a war on women, Mikey.

    Your problem is that SwM says repeatedly in no uncertain terms that she is a vagina voter in every sense of the way that Eve Ensler and others call for it, and you’re all annoyed that someone else would note that too.

    As I’ve said, if SwM wants to vote her vagina, that’s her business. But it’s wrong for her and you to bully others by saying if we don’t place PP endorsement as #1 on our list, that makes us misogynists. And it robs her of any moral standing to complain about other issues of the President’s behavior, and empowers the President to abuse her and us on those issues.

    If you could point to misogyny, you would, but repeatedly, time and again, you throw that label out, impotently, and never with any proof.

  3. Really? Because if in Wiki You Trust, it says:

    “Synecdoche (play /sɪˈnɛkdəkiː/, si-NEK-də-kee; from Greek synekdoche (συνεκδοχή), meaning “simultaneous understanding”, is a figure of speech[1] in which a term is used in one of the following ways:

    Part of something is used to refer to the whole thing (pars pro toto),”

    Which conforms with what I learned as an English major and a professionally trained rhetorician and with what I said above to differentiate the two concepts. None of which negates that rhetorical devices can be used to misogynistic ends.

    mi·sog·y·ny \mə-ˈsä-jə-nē\, n.,

    : a hatred of women

    And as most people reading your scribblings have noted, you’ve clearly got issues, dude. The claims of misogyny lay not in the device, but in your application and thinly disguised contempt for things female.

    You’ve also mistaken me for someone who doesn’t think you’re totally ridiculous, anon. You know. Ridiculous. As in:

    ri·dic·u·lous \rə-ˈdi-kyə-ləs\, adj.,

    : arousing or deserving ridicule : extremely silly or unreasonable : absurd, preposterous

    So I’ll just add English and rhetoric to the long list of things you think you understand but don’t and have a hearty laugh at your expense.

  4. “Go pound your lap some more Gene Howington.”

    Anon,

    I suspect lap pounding is your only means of gratification.

  5. Sure Gene, I just listed several dozen (gross estimate) examples of feminists using the term metonym, “vagina vote” in a mostly endorsing manner, and yet you still would claim the term is defacto misogynist.

    And my use of metonymy versus synecdouche conforms well to the wikipedia description.

    Go pound your lap some more Gene Howington.

  6. Veddy interestink.

    You are now spending as much time insisting you aren’t a misogynist as you are telling women that they vote with their vagina and trying to hide it behind the excuse “I’m using a rhetorical device.” Well . . .I’ve heard about enough of that. It’s not as if you are fooling anyone anyway.

    Technically speaking, what you are doing when you talk about women as “vagina voters” you wouldn’t be using metonymy (where one word or phrase is substituted for another closely associated word) but synecdoche (using a part to refer to the whole) – which is a very specific kind of metonymy. Such as when Shakespeare said in Macbeth, “Take thy face hence.” If you’re going to blame your misogynistic tendencies on rhetoric or rhetorical devices, you should at least be precise. Also, while we are speaking technically about language, using a rhetorical device such as “vagina voter” does not preclude that usage from being both a rhetorical device and misogynistic at the same time. They are not mutually exclusive.

    If you are having problems with the basic difference (and I suspect you are), consider the phrase “The hand that rocks the cradle.” In that phrase, “hand” is used synecdotally for parent while “the cradle” is used metonymically for the child. To further put this in proper linguistic context, while “you vote with your vagina” is synecdochal, “you vote with your bra” would be metonymical.

    The array of things you think you understand but actually don’t never ceases to impress, anon.

  7. Gyges,

    Nice. Never heard the song before. I see you focused on meaning instead of the simple rhythm of the words. My second choice was “You Don’t Win Friends With Salad” from the Simpsons.

  8. “Oh, you mean that’s the system we currently have, and you only seem to be complaining about one particular group working in it’s own (perceived) self interest? Hmmmm, well no evidence that you’re biased against that group at all.”

    Right, thank you for misrepresenting me.

    I’ve never held out just one group to this criticism. Look up and down this thread and others where it is single issue groups that come under criticism.

    What SwM is being criticized for is her stupidity or hypocrisy. Pretending to give a shit about anything other vaginas as she did in a thread about Obama using drones to target civilians but then stating over and over she will only vote based on her vagina.

    The other criticism is for those that claim the term “vagina voter” is de facto misogynistic. It’s clearly not. It’s clearly a term that’s been embraced by everyone except thread bullies trying to score some points but unable to do so with logical argument or fact.

    Also, if you want to present any evidence I am biased against women, you just go right ahead and do that.

    1. “I’ve never held out just one group to this criticism. Look up and down this thread and others where it is single issue groups that come under criticism.

      What SwM is being criticized for is her stupidity or hypocrisy. Pretending to give a shit about anything other vaginas as she did in a thread about Obama using drones to target civilians but then stating over and over she will only vote based on her vagina.”

      Anon,

      Fully 75% of your comments cast aspersions on women one way or another. The hysteria evident in your thought processes as you commented 23 times between 5:42 and 7:18 pm, endlessly droning on about women voting with their vagina’s is the mark of a disturbed man who feels women have done him wrong. Sometimes men do get screwed in marriage, but most times they get exactly what they deserve. The only problem being that they don’t have enough insight into themselves to accept any responsibility for getting screwed. Frankly I don’t give a damn how unfair your divorce was, because you have chosen to turn your hate into a crusade against women.

      Now I don’t have a vagina, but as I stated way above, women’s rights ranks very high in my reasons for voting for Obama. I’m not gay either but LBGT rights also rank high. When you have had attacks on women’s rights stemming from the vote in Roe v. Wade, that want to roll back women’s roles and enforce patriarchy, an intelligent woman should damn well vote with her vagina. Just as a Black Person would vote against a candidate who wants the return of Jim Crow. Here’s what show how demented you really are though when it comes to women and vagina’s. Voting with one’s vagina is a metaphor Anon and because of your hatred for women, you are too obtuse to get it. The metaphor simply means that women should vote in their own self-interests and actually takes in a much wider range then simply women’s rights.

      Women are also Mothers and women are Daughters and yes some women are Wives and Lovers. Health care is a vagina vote issue, as is war, the economy and much else that is contended with in our political system. It just so happens that the forces aligned against all of those things are particularly aligned against women’s right also. Now you particularly attacked SwM as a “single-issue” voter and since all the time you answer charges regarding your obvious misogyny with look at my record, perhaps you should go back and look at her record of taking positions on many issues.

      Finally though, your single issue voter diatribe is merely the flotsam with which you unsuccessfully try to hide the overriding single issue of your life, your hatred of women, all women, except perhaps for the woman who would be unfortunate enough to think you were someone worthwhile to spend time with, woe to her for she will learn better.

  10. Well I’m convinced! How dare groups of people with interests in common get together and try and influence politicians and other people to support issues they think are important! What’s next, gun owners? Business owners?! Environmentalists?!!

    Or worse, what if some of these groups whose goals seem to align formed alliances, and supported candidates that agreed with their platforms.

    Oh, you mean that’s the system we currently have, and you only seem to be complaining about one particular group working in it’s own (perceived) self interest? Hmmmm, well no evidence that you’re biased against that group at all.

  12. Metonymy is not Misogyny

    Metonymy is not Misogyny

    Metonymy is not Misogyny

  15. http://vaginaverite.com/featured/featured20.html

    In urban and rural centers around the country, street teams of young women will provide outreach in public spaces; video and audio equipment will be used to capture,’on the spot’ rants and be on hand to register young women to vote. These teams will also provide outreach in major convening places like nightclubs, concerts, health clubs, hair and nail salons.

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