Skip to comments.Can Obama make an executive-privilege claim stick? (How will it work legally and politically?)
Posted on 06/21/2012 6:38:27 AM PDT by SeekAndFind
This are 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 advisors 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 cant claim executive privilege for actions that dont 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 wont 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:
Holders 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 opponents hands because of their damaging nature. If I am correct that the administrations 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 Holders 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, Holders 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 Holders 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 publics 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 publics 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 Departments 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. Obamas 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.
Heres 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.
Holder CANNOT make the assertion, only the President can, so no Holder cannot make it stick.
the only acceptable positive would be that the law be uphold and prosecute to the fullest extent those responsible for the subversion of our Constitution and for the deaths resulting from F & F.
December 8, 2011
Dear Representative Gardner:
Dear Senator Udall:
Dear Senator Bennet:
Let's call Fast and Furious, Castaway, "Grenade Walker" and "Cash Walker" what they are. State-sponsored terrorism.
On this side of the border they are violations of the RICO Act. In Mexico and Honduras it is state-sponsored terrorism.
What else would you call heavily arming international criminal syndicates within foreign countries wherein those countries are in a death struggle with those syndicates?
Especially when it goes beyond thousands of assault rifles to include grenades, RPGs, shoulder fired rockets, anti-aircraft guns, night vision equipment, body armor and special deals to bring their drugs onto our soil with legal impunity?
Not to mention the just-revealed news that the rip crew that killed BP Agent Brian Terry was there with DEA and FBI assistance and approval to attack and kill a rival cartel's smuggling crew.
Let's not leave out the FBI and DEA laundering millions of dollars for the drug cartels by setting up bank accounts for them that they otherwise couldn't do.
It is organized, it is spread throughout every Federal LEA and it violates numerous domestic laws and numerous statutes and treaties that deal with foreign nations. Yet none of it has been officially sanctioned by Congress. (that I know of) It is the Federal government acting like mafioso.
Pres. Obama, AG Eric Holder and Sec. State Hillary Clinton are all deeply involved in this and it is unquestionably state-sponsored terrorism by the definition used to define states like Iran and North Korea.
PS: if you think I am wrong or exaggerating any of this I will be glad to bring you up to speed with very well sourced articles, legal depositions (publically available) and other public information that verifies every word I have said.
Either you are with these criminals or you are with U.S. I implore you to get informed, get involved and act or get run over by this. This lawless scandal is not going away.
Town, State, Zip
Here is a petition to call for Eric Holder's prosecution.
Tea Party Petition to Prosecute Eric Holder
After signing the petition you will get an automatic way to send an e-mail to your Congressman and Senators. You can use their text or fill in your own.
I strongly encourage all FReepers to sign that petition and to send their own thoughts about this to their Congress critters. Let them know that you are aware of this issue and that you are not going to forget about it. Let them know you will be watching to see what they do about it.
It cannot be invoked when official misconduct is suspected.
EP has no bearing on this case. For it to work he would now have to admit that the scheme was discussed in detail within the confines of the WH with him and WH advisors. They have already testified, some under oath, that F&F was not ever discussed in the WH and that they all were clueless. This would mean they lied under oath, Holder can immediately be prosecuted and the kenyan dictator would be guilty of lies (which we all know he is on every subject) as well as complicit in Holder’s crimes.
They’ve backed themselves into a corner so now it is up to the nadless GOP to pick this up and AGRESSIVELY pound this up their arses up to and past the election. They need to push this criminality in the faces of the clueless public EVERY DAY.
FUBO & FAD
Read the article. Sign the petition TigersEye has posted.
Thank you. I just checked and the petition is up about 75k signatures from a few weeks ago. It has built slowly for months. I like that it calls for prosecution not Holder’s resignation.
Only applies to the pResident”
It extends to his aides as well. Matters that directly involve the whitehouse.
Me too. And you are welcome.
100% proof positive our Marxist president knew about F&F for quite some time. Nothing like using communists own words to destroy them. I love it.
Why do I not see the letters “CIA” in your letter?
The Sinaloas obtained a plane used in CIA Rendition flights.
Btw, what happened to Donna Blue Aircraft? The company that owned the former CIA Rendition flight plane when it crash landed with 4 tons of Sinaloa cocaine?
Gunwalker was an attempt to track the sales of guns. The tracking technology failed, so the project was given up.
Fast and Furious - on the other hand - was in no sense an attempt to track the sales of guns. No tracking technology was used, and when one agent tried to apply his own tracking technology it was refused.
Instead: Fast and Furious was a wholesale movement of guns to Mexican criminals without any conceivable policing payoff. It was an attempt to spam blood-stained Mexico crime-scenes with US-registered weapons and so exert dishonest pressure on 2nd Amendment rights.
As I understand it, the Bush Administration had a well organized plan that kept track of the weapons, made arrests, and worked as a law enforcement tool. What Obama did was very different, and it was done for very different reasons. Law enforcement wasn’t Obama’s objective. He, Holder and Napolitano were creating an environment of violence that would change the law, and influence public attention against the 2nd Amendment. It goes right along with Napolitano’s efforts to portray conservatives, and non leftest leaning groups as potential terrorists. Obama was willing to see innocent Mexican citizens killed in order to promote his political agenda, and, of course, he could care less about American citizens.
I wanted to be taken seriously.
There has never been an operation named ‘Gunwalker.’
Still waiting on an answer as to what happened to Donna Blue Aircraft after their former CIA rendition plan had to be crashed landed with 4 tons of Sinaloa cocaine on it.
Wait all you want. Never heard of it so I can’t tell you.
Once Obama’s claim of executive privilege is shot down, will we find an 18-minute gap in whatever he is ordered to produce?
Wow, so you haven’t done very much research into the Drug Wars, eh???
Well how about this one.
Should Mark Conrad be taken seriously.
A former supervisory special agent with U.S. Customs.
He said that the CIA has agents operating inside many federal law enforcement agencies utilizing what is known as an official cover.” He also said ICE is a perfect vehicle for the CIA because it can provide the Agency with a free pass through U.S. ports of entry.
All an ICE agent has to do is make a call and the cargo will be cleared through the checkpoint, he says.
He is talking about the kind of agencies you used in your letter.
So explain to me how the Sinaloas got a hold of a CIA rendition plane through a known CIA/DEA/FBI asset and used it to transport 4 tons of cocaine...
Yes, I ‘miswrote’. Wide Receiver, my bad.
Let’s try another.
Should Leutrell Osborne be taken seriously. The man who recruited and managed CIA spies. He directed agents and assets in at least 24 countries. He was also a COMSEC officer.
Not a problem. A lot of names have been thrown around regarding this story.
Once you figure out that Osborne was a Spymaster...perhaps you will think twice about your claim that the CIA doesn’t win a turf war against law enforcement.
Osborne has said where there is a Turf War over assets - CIA wins hands down.
You claim that the CIA was arming the enemy of the Sinaloas.
You have admitted that the CIA would have had to know about F&F. F&F was arming the Sinaloas.
It couldn’t have happened without the approval of the CIA.
Btw, there is another poster here who is on the right track.
It’s called Blowback.
Question: Does POTUS have to claim a reason when he asserts “privilege”?
Read an article on Breitbart yesterday that obama CAN legally claim EP for Fast and Furious documents. I’ve been looking for it this morning but can’t find it, now. Wish I had bookmarked.
Politically, it only has to work until November. Easy peasy for zer0bama.
The claim has to fall within certain guidelines, which I understand this doesn’t.
This claim of privilege is the biggest blunder I’ve seen the boy president ever make, and that’s saying a lot. Not only does he have to make the assertion he or someone close to him is sufficiently involved to have written an email to DOJ, it forced the story onto the front page of a lot of media outlets that had been burying or ignoring F & F.