With Barack Obama asserting executive privilege for the first time over Department of Justice documents related to Operation Fast & Furious, perhaps a historic look at his views on the legal maneuver are in order. When a few political appointees get fired — which is perfectly within the prerogative of a President — and the 2007 version of Barack Obama rejects its use entirely. When two American law-enforcement officers get killed, along with hundreds of Mexicans, by guns run across the border in an illegal operation at the Department of Justice? Not so much:
CNN’S LARRY KING: Do you favor executive privilege or should Karl Rove and others in that like position be forced to testify before the House or Senate?
OBAMA: Well, you know, I think we’ll — we’ll determine over the next several weeks how this administration responds to the very appropriate call by Patrick Leahy, the chairman of the Judiciary Committee, to have these individuals come in and testify. You know, there’s been a tendency on the part of this administration to — to try to hide behind executive privilege every time there’s something a little shaky that’s taking place. And I think, you know, the administration would be best served by coming clean on this. There doesn’t seem to be any national security issues involved with the U.S. attorney question. There doesn’t seem to be any justification for not offering up some clear, plausible rationale for why these — these U.S. attorneys were targeted when, by all assessments, they were doing an outstanding job. I think the American people deserve to know what was going on there.
The assertion of executive privilege creates a huge problem for the White House. As Rep. Darrell Issa said today at the Fast & Furious hearing, Attorney General Eric Holder and other DoJ officials have repeatedly asserted that the White House and President Obama had no involvement or knowledge of the gun-running operation. If that was true, then executive privilege cannot apply. That only relates to the President, as that office is separately elected and accountable to the voters. Attorneys General answer to both the President and to Congress, and do not have executive privilege.
In other words, this could very well be analogous to the Watergate scandal. One has to wonder what those documents contain that would force the Obama administration to risk this kind of scandal by first refusing to comply with the subpoenas and then issuing a de facto admission that Obama himself was involved in the operation and/or its aftermath. The next venue for this scandal will be the federal courts, which is going to take a very dim view of executive privilege assertions to keep Congress from exercising its normal oversight functions for a federal agency rather than the White House itself. The assertion of the privilege at this point could open Holder and others to charges of perjury and obstruction of justice, not just contempt of Congress, once those documents get released — and they almost certainly will by the courts, if not before.
Addendum: Gabriel Malor has the nuts and bolts of contempt of Congress proceedings. Read up on it and bookmark it. We’ll need it as a reference more than once.