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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