Can Obama make an executive-privilege claim stick?

posted at 8:41 am on June 21, 2012 by Ed Morrissey

This is actually two questions, both equally important, thanks to the calendar.  Will Barack Obama’s claims of executive privilege work legally, and will it work politically?  We’re more likely to find the answer to the second question before we find the answer to the first, as the presidential election will arrive before any definitive court ruling on the action yesterday from Obama and Attorney General Eric Holder.  In my column for The Fiscal Times, I predict that Obama will lose on both counts:

A Congressional Research Service analysis from 2008 makes the need for presidential involvement in a claim of executive privilege quite clear, quoting from US v Espy, a Clinton-era case:

“Not every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege. In particular, the privilege should not extend to staff outside the White House in executive branch agencies. Instead, the privilege should apply only to communications authored or solicited and received by those members of an immediate White House advisor’s staff who have broad and significant responsibility for investigation and  formulating the advice to be given the President on the particular matter to which the communications relate. Only communications at that level are close enough to the President to be revelatory of his deliberations or to pose a risk to the candor of his advisers.”

Therefore, the Obama administration can’t claim executive privilege for actions that don’t involve the President, or his immediate staff in advising the President.  The claim of privilege appears a tacit admission that previous claims that Obama and his White House staff were unaware of Operation Fast and Furious and uninvolved in it were false. That opens up potential criminal charges for anyone who testified differently under oath for perjury and obstruction of justice – the end results of most executive-branch scandals, most famously in Watergate. …

By asserting executive privilege, the Obama administration has made it clear that they fear the exposure of ATF and Department of Justice documentation, and that Obama himself has some connection to the papers.  The question that arises has more than a whiff of Watergate to it: what did the President know, and when did he know it?  Thanks to the claim of executive privilege, the media will no longer be able to ignore the deadly outcomes of Operation Fast and Furious, and the timing of this scandal could ensure that Obama won’t have the ability to call on executive privilege after January.

My good friend and target-shooting partner John Hinderaker says that Espy is more complicated than that, but still believes that Obama’s assertion of privilege is frivolous:

Holder’s letter is a remarkable document. Viewed from a strictly technical standpoint, it is a terrible piece of legal work. Its arguments are weak at best; in some cases, they are so frivolous as to invite the imposition of sanctions if they were asserted in court. I will explain why momentarily, but first this observation: if an opposing party requests documents that plainly are protected by a privilege, a lawyer will routinely assert the privilege, on principle, even though there is nothing hurtful to his case in those documents. On the other hand, a lawyer will not assert a lousy claim of privilege unless he badly wants to keep the documents in question out of the opponent’s hands because of their damaging nature. If I am correct that the administration’s assertion of executive privilege is baseless, it is reasonable to infer that the documents, if made public, would be highly damaging to President Obama, Attorney General Holder, or other senior administration officials. …

[T]he case that is most directly pertinent to Holder’s assertion of executive privilege isIn re Sealed Case (Espy), 121 F.3d 729 (D.C. Circuit 1997), which, along with Judicial Watch v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2008), cites and relies upon Espy, contains the most up to date judicial exposition of the doctrine of executive privilege. Unbelievably, Holder’s letter never cites or mentions the Espy case. If a first-year associate wrote a memorandum for me in which he failed even to mention the most significant case, I would fire him….

But Holder’s letter completely fails to acknowledge what a weak reed the “deliberative process privilege” is in the circumstances of this case. In Espy, the court said:

The deliberative process privilege does not shield documents that simply state or explain a decision the government has already made or protect material that is purely factual….

The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need. … For example, where there is reason to believe the documents sought may shed light on government misconduct, ‘the privilege is routinely denied,’ on the grounds that shielding internal government deliberations in this context does not serve ‘the public’s interest in honest, effective government.’”

As John notes, Darrell Issa narrowed his document request in the subpoena in question to issues and documents relating to false testimony given by DoJ officials in Congress.  That is specific to government misconduct, which also means Espy applies and the privilege doesn’t exist, especially the “deliberative process” brand of privilege.

Former DoJ attorney J. Christian Adams declares the assertion of privilege flat-out illegal, quoting from a statement by former House Judiciary Chair James Sensenbrenner, speaking about Espy (cited as Sealed Case) as well:

It continued:  “Moreover, the privilege disappears altogether when there is any reason to believe government misconduct occurred.”   In Re: Sealed Case, 121 F.3d 746 (D.C. Cir. June 17, 1997, No. 96-3124).

The First Circuit agreed.  It found that, where there is reason to believe the documents sought may shed light on government misconduct, “the privilege is routinely denied,” on the grounds that shielding internal government deliberations in this context does not serve “the public’s interest in honest, effective government.”  Texaco Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867, 885 (1st Cir. 1995); see also In re Comptroller of the Currency, 967 F.2d at 634 (“the privilege may be overridden where necessary to ‘shed light on alleged government malfeasance.’”)

The Department literally asserted this privilege in the face of Congressional contempt proceedings.  It clearly cannot argue that there is no reason to believe that government misconduct occurred.  The assertion of the privilege was therefore illegal.

Clearly, Obama won’t win the legal argument.  What about the political argument?  The White House is certainly trying to shrug this off as a partisan election strategy on the part of House Republicans, but the connection of Operation Fast and Furious to the deaths of two American law-enforcement officers makes that a very risky strategy.  Until the assertion of privilege, most of the media had ignored the story — but asserting executive privilege, especially on the 40th anniversary of Watergate, has forced everyone to start reporting on OF&F.  The Washington Post lays out the risk in its analysis:

On Wednesday, his role had changed, but the debate was the same: Republican were asking what exactly Obama was trying to hide by invoking his right to executive privilege for the first time. The administration is refusing to turn over documents related to the Justice Department’s “Fast and Furious” operation, which involved the flow of illegal guns to Mexico. A House committee on Wednesday voted to find Attorney General Eric H. Holder Jr. in contempt of Congress for failing to turn over the documents.

The answers to his critics’ questions could have broad implications for Obama five months before voters decide whether to grant him a second term. The expected protracted legal dispute has the potential to embarrass and distract the White House during the heart of the reelection campaign. Obama’s assertion of privilege quickly became fodder for his political opponents, who have latched onto the Fast and Furious scandal to accuse the president of trying to avoid congressional scrutiny.

Even if Obama can convince people that partisan politics is driving the confrontation, most people will want to get to the bottom of how an ATF operation contributed to the deaths of two Americans and hundreds of Mexicans while arming drug cartels.  Bloomberg News’ editorial today gripes about the partisanship on both sides, for example, but also says that the Oversight Committee is right, and the documents need to be released:

Democrats say efforts by the U.S. House Oversight and Government Reform Committee to hold Attorney General Eric Holder in contempt of Congress over a botched gun- sting operation are a partisan stunt. They are right about the politics. The committee is nevertheless right on the merits.

Holder should turn over the Justice Department documents Congress has demanded.

Here’s why. The controversy stems from a misguided effort to stem the flow of U.S. weapons to Mexican drug cartels. Starting under the George W. Bush administration, the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed thousands of guns to be bought by so-called straw purchasers in the U.S. The agency then attempted to track the firearms as they found their way into the hands of Mexican traffickers.

Operation Fast and Furious, initiated in 2009, was the largest and last of these “gunwalking” stings, involving more than 2,000 firearms. It was a monumental failure: Only about a third of the guns have been recovered, and two weapons involved were found where U.S. Border Patrol agent Brian Terry was fatally shot on Dec. 14, 2010.

The only way to salvage something positive from this fiasco is to investigate what went wrong and learn from the mistakes. Instead, the Justice Department seems intent on burying the past.

The DoJ’s refusal to cooperate, especially on a probe of false testimony given by government officials to Congress, makes it clear that the administration thinks it has something to hide — from Obama on down.  He might get a day or two of sympathy about having to deal with big meanie Republicans, but the hundreds of deaths that occurred in this operation and the dishonesty from Obama’s administration during the probe will erode that very, very quickly.  Both sides of this arguments are losers, and the White House would probably be better served by tossing Holder and his crew under the bus and releasing everything in a single Friday-night document dump this week.  If they do that now, whatever embarrassing materials that do arise have a few months to lose their sting before the election.


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In a rational world? No.

The Rogue Tomato on June 21, 2012 at 8:45 AM

More chance of it working politically because of his media fluffers but legally?…not seeing it.

swinia sutki on June 21, 2012 at 8:46 AM

Yes, he can!

/moonbat

NoFanofLibs on June 21, 2012 at 8:46 AM

But he was a constitutional law lecturer. You mean he didn’t know what he was getting himself into? I’m really surprised.

oldroy on June 21, 2012 at 8:48 AM

I wondered how ep is able to cover doj and it shouldn’t according to above….

Great piece Ed

But we’ll here this instead
Lalala i cant hear you….bush…election year ploy
-lsm

cmsinaz on June 21, 2012 at 8:48 AM

Actually, three questions, with the third being: Can Obama make it stick at least until Nov. 7? Part of this game is to run out the clock in the legal system until after Election Day, to where if Obama wins, the ruling can only hurt him if Congressional Republicans want to up the ante to the impeachment level, if he wins the election and loses the court decision.

jon1979 on June 21, 2012 at 8:49 AM

time to get the truth, regardless!

tm11999 on June 21, 2012 at 8:49 AM

Hoppey the Hippy-Crit!!

canopfor on June 21, 2012 at 8:50 AM

Where and the sam h*ll are the,

Transparency Truth Troopers!!
(sarc).

canopfor on June 21, 2012 at 8:51 AM

Hiding documents never looks good in a political year. This is not going to help Obama.

Dollayo on June 21, 2012 at 8:51 AM

Politically this is no way a winner for Obama, but he’s trying to buy himself time til after the election. It’s not like this magically goes away even if he somehow gets reelected. But at least he doesn’t have to worry about this scandal costing him the White House once November 6 has passed.

Doughboy on June 21, 2012 at 8:51 AM

Difficult to tell but you can bet your bottom dollar the little dictator will whine, cry, complain and persist in his efforts.

rplat on June 21, 2012 at 8:52 AM

“botched gun-sting operation”

Where’s the evidence this operation was botched, unless by “botched” Bloomberg means the public found out about it.

Dusty on June 21, 2012 at 8:52 AM

I thought 0 knew nothing about F&F…..

t on June 21, 2012 at 8:52 AM

Can Obama make an executive Imperial-privilege claim stick?

Rex Lex…the King’s law and all that.

In Obama’s interpretation of that old outdated document called a constitution, Obama can do whatever the hell he pleases, when he pleases…and the public and Congress be damned.

Getting enough legal votes in November to toss Obama out of office is going to be difficult enough…Obama went to the Marcos-Thieu School of Government…physically ejecting Obama from the White House in January is going to make for some pretty exciting reality TV, as Obama stands his ground, facing off the Secret Service and US Marshals, and Michelle is hollering about it being her house, and they didn’t lose no damn election…

coldwarrior on June 21, 2012 at 8:53 AM

. . . the White House would probably be better served by tossing Holder and his crew under the bus and releasing everything in a single Friday-night document dump this week.

Jeez! Don’t give them any advice! Let Obambi keep digging the hole Holder’s dug for him.

MrLynn on June 21, 2012 at 8:53 AM

Politically this is no way a winner for Obama, but he’s trying to buy himself time til after the election.

Doughboy on June 21, 2012 at 8:51 AM

That could backfire. If the documents show criminal conduct by Holder and/or Obama, they could end up in the slammer with nobody to pardon them.

The Rogue Tomato on June 21, 2012 at 8:54 AM

I predict that Obama will lose on both counts

- in a rational world, perhaps.

williampeck1958 on June 21, 2012 at 8:54 AM

Can Obama make an executive-privilege claim stick?

Proposed new headline: Executive-privilege claim will beat Obama like a stick.

Khun Joe on June 21, 2012 at 8:54 AM

Meanwhile at the MSM Ranch(sarc)!

June 21, 2012 7:19 AM
GOP cries foul over Obama’s use of executive privilege in
“Fast and Furious” case
************************

http://www.cbsnews.com/8301-505267_162-57457575/obama-executive-privilege-use-questioned/

canopfor on June 21, 2012 at 8:56 AM

Will Barack Obama’s claims of executive privilege work legally, and will it work politically?

Legally, I think the most interesting development was the letter sent last night asking Obama to spell out exactly what part of the the documents requested but refused are protected by EP and the rationale for invoking EP on these documents. In short, let’s see if Obama not only claims EP but he is applying it as a blanket privilege for any documentation about F&F.

Politically, I don’t think the jug-eared Kenyan is in as strong a position as he thinks. This isn’t the prosecution of Clinton over perjury which the public widely (and wrongly) viewed as prosecuting him for having sex with an intern young enough to be a daughter. Holder is not a sympathetic character and comes off in testimony as a smug arrogant douchebag.

Most importantly, there is a wild card in how this plays out. It is called the NRA. How many Congressmen (of both parties) want to go into the election defending this administration’s attempt to marginalize the 2nd Amendment? The NRA can influence the outcome of more than a few elections based on how vigorously the candidate defends the administration’s F&F operation.

Happy Nomad on June 21, 2012 at 8:56 AM

… when the court rules on the mandate, the press is going to toss this whole thing into the back-seat faster than you can say “light’s green.”

Lime in the Coconut on June 21, 2012 at 8:57 AM

That Bloomberg article is crap.

txhsmom on June 21, 2012 at 8:57 AM

One must stop pretending that the Constitution and over 200 years of US jurisprudence mean anything to Obama and his cabal.

I would suggest these documents are headed for an incinerator very quickly, without regard to rules concerning official papers.

“Why did we destroy those documents? It was the right thing to do”

BobMbx on June 21, 2012 at 8:58 AM

Hiding documents never looks good in a political year. This is not going to help Obama.

[Dollayo on June 21, 2012 at 8:51 AM]

True, yet I can’t help but think of Obama’s game with his birth certificate. I doubt that it’s the same thing — there are too many docs and it’s all about communications between people and what was said when — but there’s still the small possibility we’re being suckered.

Dusty on June 21, 2012 at 8:58 AM

Obama will declare executive privilege to prevent the publication of documents that may incriminate not only Eric “Doc” Holder, but himself also. This shouldn’t surprise anyone since Obama has a history of preventing the release of anything remotely personal to himself.

The irony of it all is that he will go to great lengths to prevent the release of documents that might shed light on corruption in his administration but will freely release Top Secret information to the New York Times that could endanger this country in order to boost his numbers in the polls.

Good is evil and evil is good!

iamsaved on June 21, 2012 at 8:58 AM

Only if it goes before judges like Kagan or the Wide Latina.

In front of anyone with a brain, no. Executive Privilege CANNOT be invoked to cover up CRIMES after all!

It can only be invoked to protect things that the Congress would never be entitled to see. Oversight of the DoJ IS a Congressional function, and thus, the documents requested are within the jurisdiction of Congress.

wildcat72 on June 21, 2012 at 8:58 AM

I thought 0 knew nothing about F&F…..

t on June 21, 2012 at 8:52 AM

He evolved.

Happy Nomad on June 21, 2012 at 8:58 AM

the media spin onto the Bush administration and partisan politics is par for the course.

unfortunately many people are buying it

What is Romney’s response – needs to be constructive but at the same time shed light on the topic. The American people have a right to know

Romney needs to bring the economy to the forefront again

next week with the SC ruling and Arizona immigration issues it could be a three punch knockout

audiotom on June 21, 2012 at 8:59 AM

The controversy stems from a misguided effort to stem the flow of U.S. weapons to Mexican drug cartels

Misguided??? Exec Priv was invoked as the docs will clearly show this entire sting was completely guided by the DOJ and they are accessories to the death of 400+ innocent lives!

hillsoftx on June 21, 2012 at 9:00 AM

Somebody in the Obama administration apparently didn’t learn the first basic lesson of being a successful crook: don’t leave a paper trail.

AZCoyote on June 21, 2012 at 9:00 AM

It’s nothing more than running out the clock. Barring a big Romney stumble, Dear Liar isn’t going to be reelected. An international crisis won’t save him, not with double digit real unemployment. But this case won’t get settled by the Supreme Court before January 20, 2013, and after which, it will be moot. The foot dragging by Holder, et al., is simply a way for them to, ah, bury the bodies a bit deeper and shred those documents.

rbj on June 21, 2012 at 9:01 AM

Looking at the politics of this, I would say that Obama’s best move is to take advantage of the Supreme Court’s health care decision and do a document dump and a Holder resignation at the same time. The media will justify limited coverage with “health care reform affects all Americans” and pat themselves on the back for a couple of paragraphs in the back pages.

piglet on June 21, 2012 at 9:02 AM

They got obama on tape saying he heard about f & f in the newspapers

Liar

cmsinaz on June 21, 2012 at 9:03 AM

What a beating individual liberty has taken the last 3 1/2 years.

………Conservatives, got lots a work to do.

PappyD61 on June 21, 2012 at 9:06 AM

If Obama wasnt involved he would has tossed Holder a long time ago. Holder knows exactly where the skeletons are buried and the web is too tangled to undo now. In the meantime the economy continues to limp along. If he loses on Obamacare and Immigration he is done.

ldbgcoleman on June 21, 2012 at 9:06 AM

Canopfor lsm circling the wagons

cmsinaz on June 21, 2012 at 9:08 AM

Executive privilege
*******************

http://en.wikipedia.org/wiki/Executive_privilege

Presidential Claims For Executive Priviledge:
History,Law,Practise and Recent Developments

CRS Report For Congress
***********************

http://www.fas.org/sgp/crs/secrecy/RL30319.pdf

canopfor on June 21, 2012 at 9:08 AM

Politically this plays better for Obama than the GOP. The voters top concerns are Jobs and the economy, not gun running, border agent deaths, government misconduct, etc. The main stream media won’t present a reasoned understanding of the limited scope of the document request, the legal precedents, etc. They will play this as a political food fight the GOP started when they should be working on the economy/jobs. Fair, no. Reality, yes. The GOP can win in November if the focus stays on jobs and the economy. If the dems can turn this into a debate on the GOP “lynching” two black men, the GOP could lose the election.
There are a couple of options. One is to delay a house vote on the contempt charges until a court rules on the executive privilege. This is likely to be after the election. Any time the issue comes up, say that the judicial process is working on the issue and the Obama administration seems to be spending more time on covering up their abuses than working on jobs or the economy.
The other option is to risk voter alienation and add a third leg to the GOP campaign, government competence. There is plenty of ammunition for this case (Fast and Furious, GSA scandal, Secret Service scandal, EPA over step, dropping black panther case, Solyndra, etc). But you are then trying to convince the voters to care about something they should care about (but most currently don’t) and doing it against the head wind of the MSM who will gladly carry water for the dems to make it all seem like petty politics by the GOP.
Napoleon is quoted as saying “Never interrupt your enemy when he is in making a mistake”. The dems have made a huge mistake by simply doing what their political philosophy calls for, massive government spending, rewarding their special interests with the spending, blocking economic progress in the name of mother gia and letting those who think create rules to restrict those who do. If the GOP wins in November and simply takes the government boot from the neck of the economy, we can point to the resulting economic boom as proof that the right’s smaller government viewpoint is empirically superior to the left’s when it comes to the economy. We can then start focusing on bringing Holder and other’s to justice.

yetanotherjohn on June 21, 2012 at 9:08 AM

Saw Issa on Greta last night and he referenced a specific email that a whistle-blower told them in sworn testimoney that he wrote that has not been turned over. There is evidence that will eventually come out, because even if Obama and Holder are unafraid of jail time, there are plenty of others who are and will sing.

txmomof6 on June 21, 2012 at 9:09 AM

Liar.

[cmsinaz on June 21, 2012 at 9:03 AM]

Let’s not jump to conclusions. It might be Barry thought the operation was called “Screw the Constitution”, which appears to have been his preferred operational name.

Dusty on June 21, 2012 at 9:10 AM

Crap,sorry ED,I thought it was a different Report(at 9:08 AM))
(A Congressional Research Service analysis from 2008)

canopfor on June 21, 2012 at 9:10 AM

If he loses on Obamacare and Immigration he is done.

ldbgcoleman on June 21, 2012 at 9:06 AM

Wouldn’t bet the farm on that one.

He can do a lot more damage yet, and get nearly half the population to stand behind him (standing behind Michelle is much easier) and don’t discard Obama coming up with a Reichstag moment in October to lock down a good part of the country if necessary.

coldwarrior on June 21, 2012 at 9:11 AM

I would say that Obama’s best move is to take advantage of the Supreme Court’s health care decision and do a document dump and a Holder resignation at the same time. The media will justify limited coverage with “health care reform affects all Americans” and pat themselves on the back for a couple of paragraphs in the back pages.

piglet on June 21, 2012 at 9:02 AM

You are making the assumption that these DoJ documents do not incriminate Obama. I’d say that is an open question.

Happy Nomad on June 21, 2012 at 9:12 AM

Clearly, Obama won’t win the legal argument. What about the political argument? The White House is certainly trying to shrug this off as a partisan election strategy on the part of House Republicans, but the connection of Operation Fast and Furious to the deaths of two American law-enforcement officers makes that a very risky strategy.

There it is. The fact that this is an investigation into how the DOJ got two American law-enforcement officers killed makes the cry of “politics!” ridiculous. People have DIED as a result of this corrupt program. Someone has to answer for those deaths. Justice demands that. And Americans understand that justice demands that.

Rational Thought on June 21, 2012 at 9:13 AM

Holder must know a lot of stuff about the boss. If they went to this much trouble for a political ploy, playing an ace that will turn out to be a joker, just goes to show how truly incompetent this bunch is. This whole plan start to finish was hatched in the WH and the emails probably show it if they still exist. I’m waiting for someone to investigate Solyndra after the FBI came in and whisked away all their files. The regime is outta touch, outta control and otta reach. I want them to be outta time.

Kissmygrits on June 21, 2012 at 9:13 AM

Canopfor lsm circling the wagons

cmsinaz on June 21, 2012 at 9:08 AM

cmsinaz:Yup,I do hope,this F/F Debackle goes south,and leaves
a Donkey Poo Hurricane,covering Team Hopey,and his Proxy
MSM!:)

canopfor on June 21, 2012 at 9:13 AM

So…..um….Hopey says he was intimately connected to the OBL Command Room Snuffation,and new every little detail,

but on Fast and Furious,he has developed Progressive Amnesia!!

Jus Say`n!!

canopfor on June 21, 2012 at 9:17 AM

Somebody in the Obama administration apparently didn’t learn the first basic lesson of being a successful crook: don’t leave a paper trail.

AZCoyote on June 21, 2012 at 9:00 AM

They thought they were going to be able to scapegoat this as the independent actions of the ATF field agent in Phoenix before it ever got to worrying about a paper trail.

I honestly think that a belief the Oversight Committee wouldn’t dare pursue this issue into an election year was part of the political calculus and yesterday’s claim of EP was an act of desperation.

Happy Nomad on June 21, 2012 at 9:17 AM

Holder must know a lot of stuff about the boss. If they went to this much trouble for a political ploy, playing an ace that will turn out to be a joker, just goes to show how truly incompetent this bunch is. This whole plan start to finish was hatched in the WH and the emails probably show it if they still exist. I’m waiting for someone to investigate Solyndra after the FBI came in and whisked away all their files. The regime is outta touch, outta control and otta reach. I want them to be outta time.

Kissmygrits on June 21, 2012 at 9:13 AM

Holder’s chief qualification for office is that he’ll do anything for his boss, such as covering up for Clinton so he could pardon FALN TERRORISTS to aid Hillary’s Senate run in New York.

Holder is covering for Obama, Obama’s not covering for Holder.

wildcat72 on June 21, 2012 at 9:18 AM

…and the White House would probably be better served by tossing Holder and his crew under the bus and releasing everything in a single Friday-night document dump this week.

Not if the documents suggest the President was more directly involved than he has been portrayed up to this point. My mind always goes back to his comment to Ms Brady about working on gun control ‘under the radar’ and I think this project was a big part of that. As an aside, I like many others here think the Republicans can be pretty spineless too often. With this affair being drawn out as long as it has and even getting to the point of a contempt vote, I gotta believe Issa must really have something on Holder.

DaveDief on June 21, 2012 at 9:19 AM

There is another way this whole thing would be legal, and on the up and up. I can’t remember where I read it, but it’s not my original thought.

Bagboy Holder’s dog ate the documents in question.

Obama ate the dog, thereby transferring ownership of the documents in question as well as setting up the conditions necessary to invoke executive privilege.

Simple, really.

MNHawk on June 21, 2012 at 9:20 AM

No, but he’ll keep it under wraps long enough to make it to the election. And if he loses he’ll pardon his entire regime.

Let me be clear.

CorporatePiggy on June 21, 2012 at 9:21 AM

Exectutive Privilege
*********************

The right of the president of the United States to withhold information from Congress or the courts.

Historically, presidents have claimed the right of executive privilege when they have information they want to keep confidential, either because it would jeopardize national security or because disclosure would be contrary to the interests of the Executive Branch.

The Constitution does not specifically enumerate the president’s right to executive privilege; rather, the concept has evolved over the years as presidents have claimed it. As the courts have ruled on these claims, their decisions have refined the notion of executive privilege and have clarified the instances in which it can be invoked. The courts have ruled that it is implicit in the constitutional Separation of Powers, which assigns discrete powers and rights to the legislative, executive, and judicial branches of government. In reality, however, the three branches enjoy not separate but shared powers, and thus are occasionally in conflict. When the president’s wish to keep certain information confidential causes such a conflict, the president might claim the right of executive privilege.
(More…..)
=============

http://legal-dictionary.thefreedictionary.com/executive+privilege

canopfor on June 21, 2012 at 9:22 AM

Holder has already committed 3 documented Felonies of Perjury before a Congressional hearing, & Issa and his fellow Republicans can’t even make a Contempt charge that has serious punishment stick, let alone a Felony charge against him stick.

Obama has violated the Constitution and broken U.S. law no less than 12 times so far, and Republicans don’t have the testicular fortitude’ to even call for an investigation into Impeachment proceedings….

So, YES, Obama has proven he can get away with anything he d@mn-well wants to because Republicans are wusses, and politicians are too worried about political correctness, ‘Washington Insider rules preventing them from actually tring to hold each other accountable, and too worried about how ‘rocking the boat’ will affect them personally!

easyt65 on June 21, 2012 at 9:23 AM

The Two Faces of NY Times Editorials:

A Pointless Partisan Fight
Published: June 20, 2012

The political feud between the White House and Congressional Republicans has now culminated in a House oversight committee vote to cite Attorney General Eric Holder Jr. for criminal contempt. His supposed crime is failing to hand over some documents in an investigation of a botched gunrunning sting operation known as “Fast and Furious.”

The Republicans shamelessly turned what should be a routine matter into a pointless constitutional confrontation. Read More

Defying the Imperial Presidency
Published: July 26, 2007

The House Judiciary Committee did its duty yesterday, voting to cite Harriet Miers, the former White House counsel, and Joshua Bolten, the White House chief of staff, for contempt. The Bush administration has been acting lawlessly in refusing to hand over information that Congress needs to carry out its responsibility to oversee the executive branch and investigate its actions when needed. If the White House continues its obstruction, Congress should use all of the contempt powers at its disposal. Read More

Flora Duh on June 21, 2012 at 9:28 AM

if they can go through sarah palin’s e-mails, they should have no trouble going through Bambi’s.

GhoulAid on June 21, 2012 at 9:28 AM

Yetanotherjohn – I don’t think you valid concerns apply here. Issa has been extremely patient and diligent here. He has methodically laid out what is in reality our first constitutional crisis since Watergate – if that truly was.

He has forced the WH into invoking executive privilege over that which they are on record of knowing nothing about. Holder is redacting testimony as fast as he can just to avoid direct perjury charges due to his testimony to congress – which is a far cry more than a contempt vote.

The initial MSM reports, especially NBC’s, were bad. But they no longer control the narrative. Now, Issa has forced the WH to admit something was going on. And he can now sit back and ask pertinent questions. The law is on his side, the calendar? Who knows.

The advantage – the WH must now engage in damage control at the same time Obama is trying to get elected – he is burning cash at a huge rate. There is no reason to suggest there is enough talent in the WH to pull this off.

I see this F&F as a slow bleed, that makes Obama weaker with each passing week.

Zomcon JEM on June 21, 2012 at 9:30 AM

Holder/Obama will simply ring up Sandy Berger and have him stuff all those docs down his pants and then go on a long vacation. No way will any incriminating docs see the light of day, one way or another.

FireFly on June 21, 2012 at 9:30 AM

What we really need is a hacker whistle-blower in the DoJ.

The Rogue Tomato on June 21, 2012 at 9:33 AM

Barack down another point in Rasmussen today, 47(Romney)-43.

Rational Thought on June 21, 2012 at 9:34 AM

yetanotherjohn on June 21, 2012 at 9:08 AM

Yes. Those narratives are out there….

However,

There it is. The fact that this is an investigation into how the DOJ got two American law-enforcement officers killed makes the cry of “politics!” ridiculous. People have DIED as a result of this corrupt program. Someone has to answer for those deaths. Justice demands that. And Americans understand that justice demands that.

Rational Thought on June 21, 2012 at 9:13 AM

I’m going with Rational Thought on this.

bettycooper on June 21, 2012 at 9:35 AM

don’t leave a paper trail.

AZCoyote on June 21, 2012 at 9:00 AM

Don’t give them any ideas.

Holder/Obama will simply ring up Sandy Berger and have him stuff all those docs down his pants walk out of DoJ with ..um.. toilet paper trailing on his shoe and then go on a long vacation. No way will any incriminating docs see the light of day, one way or another.

FireFly on June 21, 2012 at 9:30 AM

bettycooper on June 21, 2012 at 9:39 AM

The act of asserting executive privlage begins when the President notifies Congress through an official written correspondence, signed by the President and stating the reasons for the assertion.
This has not occurred, Holder simply asked for the privlage, and Obama SAID he would grant the request.

I believe this is a red herring – that DoJ and Obama were hoping that the mere spoken word of their request would be enough to postpone the committee vote.
It did not work.

gonnjos on June 21, 2012 at 9:39 AM

Well I guess he has to try. Holder is on the ropes. Many times now Holder has been asked questions where he had to squirm out of them by adlibbing falsity’s. Only to have the DOJ, when pressed for clarification, retract his statements. I mean he is actually lying. It is time to hold him in contempt. This isn’t like Roger Clemens. Here Holder is lying because that is all he can come up with in order to avoid telling the truth. ugh!

jake49 on June 21, 2012 at 9:41 AM

Absolutely, he’ll make it stick. He’ll disregard any court ruling. He’ll also pardon Eric Holder, or whoever the culprit is. He’ll even pardon himself if necessary. He’ll also have the MFM to back up his indiscretions.

Red Creek on June 21, 2012 at 9:43 AM

With this affair being drawn out as long as it has and even getting to the point of a contempt vote, I gotta believe Issa must really have something on Holder.

DaveDief on June 21, 2012 at 9:19 AM

Sounds like he’s got a least one mole, inside the DOJ, sending him documents. I think he knows the answers to a lot of the questions he’s asking. That’s gotta make Holder and Barry sweat.

a capella on June 21, 2012 at 9:43 AM

Heh dusty :)

Hope so Canopfor

cmsinaz on June 21, 2012 at 9:44 AM

Where does that leave the two lawyers assigned to solve this case for zero–All they have now is hearsay?

dragondrop on June 21, 2012 at 9:45 AM

Somewhere, Bill and Hillary are laughing.

banzaibob on June 21, 2012 at 9:45 AM

Will it stick?

I doubt it, that fan is turned up pretty high…

ajacksonian on June 21, 2012 at 9:45 AM

If they do that now, whatever embarrassing materials that do arise have a few months to lose their sting before the election.

Obama can’t and he won’t. It’s ego and arrogance. He’s the Messiah and above the law don’t you know.

TulsAmerican on June 21, 2012 at 9:46 AM

Flora Duh on June 21, 2012 at 9:28 AM

This.

This is why the suggestion that it will hurt him politically is, possible, but unlikely. Unless this gets some more legs, this is firmly another example of right-wing partisanship (if it gets mentioned at all) to the low info voters.

ChrisL on June 21, 2012 at 9:48 AM

While many folks believe that “Fast and Furious” was an attempt to create an atmosphere to severely restrict 2nd amendment rights, there is a alternate theory that there is an immunity deal between U.S. and the Sinaloa cartel, which does lots of business in Chicago.

The “deal” was something on the lines that the Sinaloa cartel would take out the other cartels with US help (sounds a lot like the plot line of “A Clear and Present Danger“).

If this is the case, and that is a big if, then there would be plenty of reasons to not inform the Mexicans authorities and revelation would be a huge embarrassment to the Obama Administration.

J_Crater on June 21, 2012 at 9:48 AM

The Fast and Furious Scandal Is Turning Into President Obama’s Watergate

http://predicthistunpredictpast.blogspot.com/2012/06/fast-and-furious-scandal-is-turning.html

M2RB: Beastie Boys

Resist We Much on June 21, 2012 at 9:48 AM

thought 0 knew nothing about F&F…..

t on June 21, 2012 at 8:52 AM

…first he knew about it was in the paper…like MOST people…and it was on the news!
The media is in his corner…it will be someone elses fault!

KOOLAID2 on June 21, 2012 at 9:48 AM

o…..um….Hopey says he was intimately connected to the OBL Command Room Snuffation,and new every little detail,

but on Fast and Furious,he has developed Progressive Amnesia!!

Jus Say`n!!

canopfor on June 21, 2012 at 9:17 AM

This!

Any time jugears flaps his lips it is always “Me”, “Me”, “Me”, & “I”, “I”, “I”. That he is suddenly “out of the loop” is evidence enough that he is neck deep in this.

MNHawk on June 21, 2012 at 9:20 AM

LMAO v1.0

FireFly on June 21, 2012 at 9:30 AM

LMAO v2.0

pain train on June 21, 2012 at 9:49 AM

Barack down another point in Rasmussen today, 47(Romney)-43.

Rational Thought on June 21, 2012 at 9:34 AM

Those partisan hacks at Rasmussen must have oversampled Republicans again. :)

I wonder how Congress gets clarification or verification that EP is actually in place and for specifically what.

oldroy on June 21, 2012 at 9:51 AM

US v Nixon was all about establishing the threshold for legitimate use of executive privilege. All the legal precedent necessary to disallow Obama’s use of it is found there.

subsonic on June 21, 2012 at 9:52 AM

This is a game of poker being played between Issa and Holder/Obama. Issa surely already has the documents he is asking for – a royal flush. They have probably been supplied by those in the DOJ who are as disgusted as we are about the actions of Holder/Obama. However, to protect his sources, Issa has to subpoena them. Holder/Obama know that Issa already has the documents – the royal flush. Issa knows that Holder/Obama know he has them. They have seen themselves backed into a corner, so they envoke EP to buy some time before Issa goes “all in”.

Holder/Obama are counting on their friends in the LMS to under-report the story in hopes it fades away. Issa and others need to keep fanning the F&F fires, pointing out that Holder/Obama are obviously covering up their involvement. He needs to emphasize that as a result of the DOJ, hundreds of people have been murdered, including two US LE members.

Romney, on the other hand, should put out a statement about how Congress is doing the right thing by providing oversight over DOJ operations and that he is confident they will get to the bottom of what happened, who knew what and when. He should also emphasize that this “Most Transparent Administration” evah, is anything but. Then he needs to go back to hammering Obama on the economy, jobs, and expanding our use of proven, available energy sources here in the US. Let Issa and others in Congress carry the mail on the corruption in the DOJ/WH.

GAlpha10 on June 21, 2012 at 9:52 AM

Resist We Much on June 21, 2012 at 9:48 AM

Dude, enough with the links to your stupid website.

Okay?

pain train on June 21, 2012 at 9:52 AM

Romney, on the other hand, should put out a statement about how Congress is doing the right thing by providing oversight over DOJ operations and that he is confident they will get to the bottom of what happened, who knew what and when. He should also emphasize that this “Most Transparent Administration” evah, is anything but. Then he needs to go back to hammering Obama on the economy, jobs, and expanding our use of proven, available energy sources here in the US. Let Issa and others in Congress carry the mail on the corruption in the DOJ/WH.

GAlpha10 on June 21, 2012 at 9:52 AM

Exactly. This isn’t a loser for Romney or the Republicans. People can pay attention to more than one thing at a time.

oldroy on June 21, 2012 at 9:56 AM

Looks like delay until after the election. Regardless of the election outcome, ‘O’ will pardon Holder and everyone involved.

If ‘O’ wins the election, just to poke a big stick at the Republican’s, he’ll pardon Holder AND let him keep his AG position. “Take that” he’ll say, … “I won!”.

As for impacting the election, I don’t see where the traction will come from to keep this in the headlines beyond next week. Once turned over to Holder’s underlings to investigate, this will die a silent death.

Those that will decide this election have not even started to pay attention yet. The general population truly is more interested in the weather.

Carnac on June 21, 2012 at 9:56 AM

If this is the case, and that is a big if, then there would be plenty of reasons to not inform the Mexicans authorities and revelation would be a huge embarrassment to the Obama Administration.

J_Crater on June 21, 2012 at 9:48 AM

Obama is quoted as bragging to Sarah Brady that his administration is doing all sorts of things to get rid of the guns that can’t be talked about. I read this as F&F.

Happy Nomad on June 21, 2012 at 9:58 AM

http://blogs.telegraph.co.uk/news/timstanley/100166854/the-fast-and-furious-scandal-is-turning-into-president-obamas-watergate/

wow.

If you haven’t seen this yet. Go read it. I’m sure I picked it from someone here, can’t recall who, but check it out.

ted c on June 21, 2012 at 9:59 AM

The democrat meme is that it’s Bush’s fault and they’re not even being corrected on this horse pucky on Fox. Do we let it go for expediency’s sake? No. Something very bad is going on, just like something very bad is going on with the National Security leaks (BTW, anyone remember that THE shadow president, Valarie Jarrett is Iranian?)

Perhaps some Democrat needs to explain exactly how Obama taking over industries and changing laws by fiat is any different from Chavez?

Portia46 on June 21, 2012 at 9:59 AM

ow.

If you haven’t seen this yet. Go read it. I’m sure I picked it from someone here, can’t recall who, but check it out.

ted c on June 21, 2012 at 9:59 AM

ted c:Lol,I already sent it in to Tips!:)

canopfor on June 21, 2012 at 10:02 AM

Name That Caption

http://predicthistunpredictpast.blogspot.com/2012/06/you-write-caption.html

M2T(hink)B: Def Leppard

Resist We Much on June 21, 2012 at 10:02 AM

Portia
Infuriating
Teds linky explains it perfectly ….yet again an actual report from across the pond

cmsinaz on June 21, 2012 at 10:04 AM

Starting under the George W. Bush administration, the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed thousands of guns to be bought by so-called straw purchasers in the U.S. The agency then attempted to track the firearms as they found their way into the hands of Mexican traffickers.

What’s political and partisan is the sentence phrasing by Bloomberg.

When top officials from the Bush Administration found out this was going on, they shut it down. It ended well before Mr. Bush was out of office.

And it wasn’t “stings”, plural. It was a single misguided effort started by BATF and shut down by senior officials quickly.

But this is somehow Bush’s fault. Right.

It appears Mr. Holder and possibly Mr Obama not only had knowledge but some type of involvement in this operation which killed two LEO’s.

Mr. Obama’s administration not only “restarted” it (and I am being generous here). But they did so with the knowledge the prior administration shut down a similar operation because it was a terrible idea. Period.

And that’s been proven true since we now have two grieving families- still being dragged through the mud by Mr. Obama and Holder.

Marcus Traianus on June 21, 2012 at 10:04 AM

Name That Caption

http://predicthistunpredictpast.blogspot.com/2012/06/you-write-caption.html

M2T(hink)B: Def Leppard

Resist We Much on June 21, 2012 at 10:02 AM

C’mon man. that is sleazy. Get your own traffic.

oldroy on June 21, 2012 at 10:07 AM

Anyone who thinks shredding/burning the docs will save Obama- you do know that destroying documents known to have existed is instant grounds for impeachment? It’s Nixon territory, with likely the same result.

If it were discovered that it’s already happened- it’s 1974 redux.

Bat Chain Puller on June 21, 2012 at 10:07 AM

C’mon man. that is sleazy. Get your own traffic.

oldroy on June 21, 2012 at 10:07 AM

I don’t need traffic. I don’t advertise on my blog nor do I make a cent from it. HA regs like my Pics, Toons, etc., of the day.

Resist We Much on June 21, 2012 at 10:13 AM

Looks like delay until after the election. Regardless of the election outcome, ‘O’ will pardon Holder and everyone involved.

If ‘O’ wins the election, just to poke a big stick at the Republican’s, he’ll pardon Holder AND let him keep his AG position. “Take that” he’ll say, … “I won!”.

As for impacting the election, I don’t see where the traction will come from to keep this in the headlines beyond next week. Once turned over to Holder’s underlings to investigate, this will die a silent death.

Those that will decide this election have not even started to pay attention yet. The general population truly is more interested in the weather.

Carnac on June 21, 2012 at 9:56 AM

A pardon means that Holder is beyond prosecution.

He is not beyond testifying.

In fact pardoning him means that he can be compelled to testify as he has no worries about prosecution. Obama might pardon Holder after he loses the election, but not one moment before… and probably on the last day in office just in case… and even then the President cannot pardon himself for anything he did in office.

Holder, free and clear, can sing like a bird and be held in contempt for not doing so exactly because he has nothing to fear from prosecution due to the pardon. Congress has a duty to investigate the goings on of the government as they are the ones who set the rules and cut the checks, a pardon does nothing to this power. The pardon power does not trump the Congressional investigation power as they are in different domains.

No, pardoning Holder would be a very dangerous thing to do for Obama.

Unless he knew that Holder wasn’t going to be around much longer.

Its fun to think that a pardon might be an offer that Holder can’t accept… which is a cruel twist on the Mafia concept, indeed.

ajacksonian on June 21, 2012 at 10:14 AM

Operation Fast and Furious, initiated in 2009, was the largest and last of these “gunwalking” stings, involving more than 2,000 firearms. It was a monumental failure: Only about a third of the guns have been recovered, and two weapons involved were found where U.S. Border Patrol agent Brian Terry was fatally shot on Dec. 14, 2010.

It was not a failure. It worked exactly as planned.

This just shows even when this story is reported, it’s not reported accurately.

ButterflyDragon on June 21, 2012 at 10:14 AM

Dude, enough with the links to your stupid website.

Okay?

pain train on June 21, 2012 at 9:52 AM

Most of the regs here like them. I don’t make any money from any of it.

I suppose that I could C&P my articles or those that I am featuring. They are a wee bit lengthy, which is why I link to them instead of spam threads with longgggggggg posts.

You don’t have to open them. Many others do and like them.

PS: I’m a guuuuuuuuuuuuuuuuuuuuuurrrrrrrrrrrrrrrrrlllllllllllllll.

Resist We Much on June 21, 2012 at 10:17 AM

I thought 0 knew nothing about F&F…..

t on June 21, 2012 at 8:52 AM

Only in a Sargent Schultz kind of pretend fashion. Other than that as this video proves, Obama himself authorized the program.

SWalker on June 21, 2012 at 10:18 AM

I expected the fast and furious investigation to fade away long ago, yet it has kept churning along and now it is getting harder to ignore. I do have hope that justice will prevail and those responsible will be held accountable.

cheetah2 on June 21, 2012 at 10:19 AM

Anyone who thinks shredding/burning the docs will save Obama- you do know that destroying documents known to have existed is instant grounds for impeachment?
Bat Chain Puller on June 21, 2012 at 10:07 AM

They won’t be that stupid. Beginning Nov. 7th, everyone becomes eligible to be pardoned. Story ends there as long as Obama isn’t linked.

Carnac on June 21, 2012 at 10:20 AM

This is a game of poker being played between Issa and Holder/Obama.

GAlpha10 on June 21, 2012 at 9:52 AM

I agree completely. It would be simple entertainment for me if did not involve a perversion of justice by a very corrupt administration.

I can see the PR benefit of Obama invoking executive privilege. Perhaps others understand, but I cannot see how such a peevish, arrogant and amoral president can maintain the relatively high favorability ratings he does with the American public. If that is true and those who are polled are not lying to avoid being considered racist then maybe it is figured that inserting the President more directly in this investigation will help take some of the heat off. In the court of public opinion I think Issa must always emphasize his narrow goal and that is to learn the details of Operation Fast and Furious which is well withing Congresses role to investigate. He should be clear that there was a gun running operation into a foreign country overseen by a United States agency. There was an American citizen killed as well as hundreds of citizens in Mexico by these firearms. The Attorney General was asked to testify and was found to have lied on more than one occasion. Cooperation by the Attorney General would have likely brought the investigation to a close by now. Issa has no agenda against the President because both the President himself and the Attorney General said the President had no knowledge of this operation (it is very important that the public know this claim). Issa can then simply say that we feel the President’s use of executive privilege is felt to be misplaced because since he did not know the details of the operation the investigation is no threat to his office. Issa should conclude my reminding the public that this claim is not unprecedented and move to site specific examples where previous challenges to executive privilege have been brought before the court. I think it must be kept in mind that most of us have followed this very closely but the general public is just learning about it. This is probably arrogant/snarky for me to say but the political term “independent” applies to those who have no strong ideological leanings and their allegience on any particular day depends on how they are feeling when they wake up that morning or how their day is going. If a guy gets mugged by a person of color he becomes a Republican that day. If on another day he thinks he is lining the pockets of a businessman by a perception of being overcharged for a product then he is a Democrat on that day.

DaveDief on June 21, 2012 at 10:20 AM

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