Skip to comments.With the options available, why did Obama choose to invoke executive privilege?
Posted on 06/23/2012 6:31:20 PM PDT by marktwain
That, at least to me, is the pregnant question. He had a number of other options but 4 months from a critical election, chose the most controversial and potentially damaging one.
Lets begin with a quote from a former White House counsel from a Powerline post:
Even with his fawning press, [President Obama] will pay a price for this one. He knows this, meaning that the documents now to be withheld must be dynamite. They have to show either that Holder knew what was going on with Fast and Furious and approved it, or that he directly committed perjury in his Congressional testimony, or both. I just cant see any other explanation for such a risky move.
Wasnt the Washington Post just covering big time the 40th anniversary of Watergate? I wonder how much coverage this one will get.
Thats the result of the move speculation that the documents being withheld point to perjury by Holder or the President, or both.
So lets break this down a bit. If it was all about Holder, why would the president risk this sort of a controversial move this close to an election. Its not like hes never thrown anyone under the bus. In fact James Carville is on record advising Obama to dump Holder.
Obama had the option, then, of letting Holder face contempt charges (not much happens as weve seen in the past, to those who are served with contempt of Congress charges) and drag out the document release until after the election.
With the election season gearing up, it is likely that while the controversy would have been an issue, it wouldnt have been a major issue. Now it certainly is.
He could have asked Holder to resign. He could have then used the opportunity to appear as a statesman, a leader and bi-partisan all in one fell swoop. Depending on how he handled that it could actually have been a positive for him heading into an election. In the meantime, an acting AG could continue to delay on providing documents.
But he did neither of those things. For some unknown reason (at least to this point) he chose to do the least likely and most politically damaging thing invoke executive privilege. As the lawyer quoted has said, those documents must be dynamite to have the president make this move.
And, unsaid by the lawyer is the speculation that the documents show the involvement of the White House to a degree that is damaging apparently more damaging than the speculation and attention this move by the President has brought.
David Kopel at Volokh Conspiracy gives you a great history of the controversy. As for the documents Kopel notes:
According to Attorney General Holder, the DOJ has 140,000 documents related to Fast & Furious. Fewer than 8,000 have been provided to Congress pursuant to subpoenas. The contempt vote has been narrowed to 1,300 documents. In refusing to comply with the House subpoenas, the DOJ has refused to create a privilege logwhich would identify withheld documents, and the legal reason for their being withheld.
Matthew Boyle at the DC caller points out that Holder has retracted two previous statements he made to Congress where he gave them inaccurate information in an attempt to blame previous AGs or administrations. It seems thats a standard operating procedure with all parts of this administration. So Holder is left holding the bag all by himself on this one, or so it seemed, at least, to the point that executive privilege was invoked.
That brings us to these 4 point by Todd Gaziano at the Heritage Foundation about the use of executive privilege:
First, the Supreme Court in United States v. Nixon (1974) held that executive privilege cannot be invoked at all if the purpose is to shield wrongdoing. The courts held that Nixons purported invocation of executive privilege was illegitimate, in part, for that reason. There is reason to suspect that this might be the case in the Fast and Furious cover-up and stonewalling effort. Congress needs to get to the bottom of that question to prevent an illegal invocation of executive privilege and further abuses of power. That will require an index of the withheld documents and an explanation of why each of them is covered by executive privilegeand more.
Second, even the deliberative process species of executive privilege, which is reasonably broad, does not shield the ultimate decisions from congressional inquiry. Congress is entitled to at least some documents and other information that indicate who the ultimate decision maker was for this disastrous program and why these decisions were made. That information is among the most important documents that are being withheld.
Third, the Supreme Court in the Nixon case also held that even a proper invocation must yield to other branches need for information in some cases. So even a proper invocation of executive privilege regarding particular documents is not final.
And lastly, the President is required when invoking executive privilege to try to accommodate the other branches legitimate information needs in some other way. For example, it does not harm executive power for the President to selectively waive executive privilege in most instances, even if it hurts him politically by exposing a terrible policy failure or wrongdoing among his staff. The history of executivecongressional relations is filled with accommodations and waivers of privilege. In contrast to voluntary waivers of privilege, Watergate demonstrates that wrongful invocations of privilege can seriously damage the office of the presidency when Congress and the courts impose new constraints on the Presidents discretion or power (some rightful and some not).
The key point, of course, is executive privilege cannot be used to shield wrongdoing. While it is speculative, it appears highly likely given the other options available that executive privilege is being used for precisely that reason in this case.
Additionally, given the choices available to the President, it is not at all out of bounds to speculate that the most transparent administration in history is trying desperately to hide something even more terrible than the political fallout from this choice.
The White House cites internal discussions and ongoing investigations are the reason for its denial and claims the investigations would be jeopardized with the release of the documents. But, as Gaziano points out, accommodations can be made in that regard. The total number of documents requested is 1,300. The White House is simply refusing to cooperate or accommodate.
Were still left with that question.
And the answer, given the actions to date, lead to some logical speculation what is contained in those documents is much more damaging politically than the damage done by the decision. Additionally, Obama cant afford to let Holder go because if he does theres the potential that Holder will then spill the beans.
Oh, and finally, this move has suddenly brought Fast and Furious to page one and the top of the newscast like nothing else could. The majority of the country, which was mostly ignorant of this scandal are now in the loop.
As the cited former White House counsel said, the documents now to be withheld must be dynamite. In fact, they must be so explosive that the White House is desperate enough to try to weather this self-inflicted political storm in lieu of exposing them.
That says a lot.
Gunwalker / Murdergate ping.
The ‘Constitutional Law ‘ professor in the Oval Office apparently does NOT know how the law works for Executive Priviledge.
He is hanging both himself & Holder, IMO.
Calling out a torpedo to see if it can hole the SS 0bama.
“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
I think Holder has the goods on Obama. Obama is between a rock and a hard place. He can’t afford to diss Holder, and he can’t let those documents be seen, either. He fires Holder, and Holder will spill the beans. Executive privilege is not going to work in this case,you are correct. But they had already got themselves in a corner and he decided to gamble.
Holder could end up having a Ron Brown style accident.
Right now, if I was reading Career Builder and saw a position of, “Food Taster wanted, salary 1/2 million $ per anum.” And it was anywhere east of the Mississippi? I run like a red-assed ape for the hills!
Hard to believe together they are that stupid.
Think you are absolutely correct. Zero is either directly complicit in something incriminating or is afraid to throw the AG under the bus for fear of what Holder might reveal.
soetoro was not a law professor, he was a add junk lickturer.
Fast and Furious is Obama’s Watergate — like Watergate but with 300 dead bodies
Should we call it Obamagate?
Who ever made this decision to push this policy killed 300 lives.
I think it is arrogrance, they don’t think they will be held accountable.
My view? Is that there is a distinct lack of “adult supervision” inside the thinking of this administration.
Think about the “Julia” website as my main example. This was pretty clearly done by a cadre of youngsters who work for 0bama in some capacity and were “turned loose” in order to create the thing. It was flashy, snappy, in terms of execution. But the messaging behind it was unsupervised, it produced an impression that this admin doesn’t really think that individuals can make it on their own, and wants to sell the lifetime government dependency orientation. And this was the impression that even liberals came away with. This is my point, that there was no adult supervision. They were tasked and let loose and came up with a flashy result, and nobody of what we would call maturity sat down with the final version and pondered what the take-away was going to be by just simply chewing on it for 24-48 hours before unleashing it.
And how about the under-30 amnesty deal? Think about it. OK, so on the surface it’s a great thing for the beneficiaries. But forget not that those “kids” are going to have to identify their PARENTS within the application process. The parents don’t have the immunity from deportation. And they are going to have to be declared illegal, or, they will have achieved citizenship sometime AFTER the kid applies...but that is going to be the exception IMHO. After all, if they were citizens, the kid would be citizens, so, the very act of applying for this “amnesty” identifies the parents as illegal! In order to take advantage of the program, the kids are in effect going to have to rat out their parents! They gonna do that?
The 0bama admin comes out with this stuff and my take on it is it’s just not very well thought out. In fact it’s not thought out hardly at all. The slogans are bumper-sticker depth. And frankly, the thinking is, too. It is reflexive and it isn’t well thought out. I don’t think it’s any more complicated than that. Consistent picture?
Same with the F&F executive order. They could not have planned this from the beginning, they thought they could stonewall and obfuscate and get away with the type of misdirection that comes from redacting entire documents until some indefinite time in the future; perhaps after the attention has shifted elsewhere. Yeah, you submitted a document in response to a subpena or a request by Issa, but the whole thing is blacked out! They literally fell into a trap of their own making, now immutably cementing 0bama to the cover-up by asserting excutive privelege. They did not count on a no-let-up pursuit from Issa, which is dumb, because he has proven his relentlessness. But even more ironically, they did not adequately ponder the implication of issuing the executive order. It was done in a hurry, and I’ll bet you $5 they did not realize the consequence that because ONLY the prezzy can issue such an order, it thusly must be he who has the stuff to hide.
I believe this is a consistent theme and characteristic within this admin. Very simply, there is no adult supervision, their stuff is ad hoc, it is simply not well thought out. They are so arrogant, yet so amateurish, they think they can get away with misdirection or changing the subject, or war on women or millionaires and billionaires or social justice, or green jobs, or policemen and teachers, anything to change the topic matter. Just pick the next Alinsky tactic on the list and go with it. That well is running dry.
Very good analysis - and I still don’t understand why Obama invoked EP over this. Even if the documents pointed directly to him, with his complicit media he would have been given a free pass and the whole thing would have gone down the memory hole.
And as far as Holder goes, as the author points out, being found in contempt of Congress is meaningless, since there are no penalties. Unless the media cares to whip up anger over it, nothing will happen to the person found in contempt, and the media is certainly not likely to get riled up about Obama’s lackey Holder.
The only thing I can think is that Obama really does see himself as a special kind of President (the dictator kind) and thinks that any challenge to any of his minions is a challenge to him. Being a very thin-skinned dictator, he can’t take any challenge, no matter even if it’s only something that he has built in his own head.
The other possibility is that he is so stupid and inept that he really thinks the power-play is the way to go. Come to think of it, he really is stupid and inept...
if the vote is tuesday [and it better be], nbc will start their newscast with “japs bomb pearl harbor”.
Obama must have directly approved Fast N Furious...or Holder has got some major compromising photos of Obama beyond being with another woman
Because he's incompetent and more ideologue than intellect.
Excellent comments! I agree that there's a serious lack of direction in the WH, but I think it's not simply lack of supervision, but stupidity on the part of the folks who think they're pulling the strings.
Obama really does think he's special. He's actually nuts, but nutty people often think they're special.
And everybody who works for him came in with the impression that it was going to be the time for the "ajuste de cuentas," the settling of accounts, with the enemies they had fantasized about destroying since 1968.
Obama is part of the post-1968 generation, but he is somebody who was in a radical leftist time-warp, which is why the nearly 70 yr old Bill Ayers still seems to Obama to be on the cutting edge.
Also, the main problem is that Mr. Choom Gang simply isn't very smart.