Forget the legalities of executive privilege and the partisan nature of the fight over the contempt charge, David Brooks told PBS on Friday night. Even if the assertion of the privilege is legal, which almost everyone agrees it isn’t, it’s still a dumb response to a dumb program — and it’s only going to benefit the Republicans:
“I’m in general a defender of executive privilege,” Brooks said. “I think it’s important for an administration to be able to have conversations about policy that will be private, so they can have a normal deliberative process. In this case — whether legally the administration is on solid ground in invoking it — that is a gray area. Politically, I think it’s stupid.”
Brooks explained the right time to use executive privilege would be with a national security issue. However, in this instance, the right course of action might have been to lay out for the public how the policy was a mistake.
“I think politically it’s stupid, because it is one thing if you’re invoking executive privilege over some national security issue. This is a policy everybody admits was profoundly stupid. Why are you not saying, ‘OK, this was a stupid policy, let’s get it out there and let’s figure out how it came about.’”
I’m also a general defender of executive privilege — when it relates to non-delegable Article II powers, which the Constitution explicitly keeps separate from Congress and the judiciary. It shouldn’t apply to people within federal agencies, which derive part of their authority by delegation from Congress as well as the executive branch. That’s what the courts decided in Espy, and that’s why even the weak argument for “deliberative process” won’t work here, unless it relates to involvement by Barack Obama and/or his inner circle of advisers working to present Obama policy choices on gun-running.
That brings us to the foolishness of this particular assertion of privilege. Few in the media were paying attention to this scandal, which means that most voters still have no idea that the US government allowed thousands of untracked guns to be sold to drug cartels, and that those guns are responsible for hundreds of murders in Mexico and the deaths of two American law-enforcement officers … so far. By asserting executive privilege, Obama has assured that the media will be taking a much closer look at the scandal, and that’s bad news for Democrats:
“I think it is a winner for the Republicans,” Brooks said. “It’s funny — it hasn’t really registered with the country yet, what the government has done. When — if — it gets out: ‘Wait, they were sending guns to Mexico?’ — I think it’s such a thing that will startle people. I think it’s a clear winner for the Republicans. And what the Obama administration wants to do with this executive privilege: get it lost in the court system, push it past the election, and then hopefully it will go away.”
Could that strategy work? Almost certainly not. While some media outlets yawned at the bodies piling up from Operation Fast and Furious, they’ll have to report on a President that’s hiding documents relating to it through executive privilege. That will force them to explain the scandal from the beginning sooner or later, and as Brooks says, most people will say, “We were doing what?”