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  • Fast And Furious: Executive Privilege Is Illegitimate to Shield Wrongdoing

    As a strong defender of executive power (when properly exercised) and executive privilege (when properly invoked), I am concerned when claims of executive power or privilege are abused for any reason—especially if they are invoked to shield potential wrongdoing. In addition to shielding the wrongdoing, it jeopardizes the very executive power that the President is entrusted with when Congress and the courts react—as they did in the post-Watergate era—to the abuse of power.

    The House Committee on Oversight and Government Reform is rightfully investigating the Fast and Furious debacle, in which the Administration allowed thousands of guns to flow across the Mexican border, resulting in the death of one U.S. border patrol agent and at least 200 Mexican citizens—according to the Mexican attorney general. The most glaring violation of executive power in that investigation prior to today was the refusal of the Department of Justice (DOJ) to turn over 1,300 pages of documents subpoenaed by the committee without even an assertion of executive privilege. Attorney General Eric Holder simply refused on his own initiative in a blatant act of stonewalling.

    As Holder surely knew all these past months, there is no privilege that exists between Congress and the executive branch to withhold documents except the constitutional executive privilege, which is based on the separation of powers. For example, the attorney-client privilege does not exist between Congress and the executive branch because they have the same client—the American people. Holder also knew that executive privilege does not attach to documents automatically. It can be asserted only by the President or with his direct approval. It can be waived; indeed it should be waived in many or most instances when Congress needs the information for its legislative functions. So the slated House committee vote to hold Holder in contempt today was unfortunately necessary to get him to at least reconsider his lawless course of stonewalling.

    In a desperate attempt to prevent the contempt vote in the last few hours, Holder asked President Obama to invoke executive privilege to shield these 1,300 pages of documents from Congress, and the President apparently agreed to do so. Yet that is not the end of the story. Even if properly involved, the Supreme Court has made clear that executive privilege is not absolute. DOJ must provide an explanation why all those documents fit one of the recognized categories of executive privilege. It is questionable whether they all are legitimately subject to executive privilege, for several reasons.

    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 Nixon’s 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 privilege—and 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 executive–congressional 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 President’s discretion or power (some rightful and some not).

    But there is at least one helpful development in Holder’s request that the President invoke executive privilege to shield these documents: The President now owns the consequences of further stonewalling. There is no ongoing DOJ prosecution or investigation to protect. There is no obvious reason why the President can’t waive even what legitimately privileged documents there are (which is probably far fewer than the 1,300 pages being withheld).

    The American people will now clearly understand that it is President Obama who doesn’t want them to know who is to blame for the Fast and Furious scandal—and whether his Administration has done anything to prevent it from happening again.

    Todd Gaziano is the Director of the Center for Legal & Judicial Studies at The Heritage Foundation. He previously served in the DOJ’s Office of Legal Counsel, which advises the Attorney General and the President on the invocation of executive privilege. He was also a chief oversight counsel in the House of Representatives.

    Posted in Featured [slideshow_deploy]

    30 Responses to Fast And Furious: Executive Privilege Is Illegitimate to Shield Wrongdoing

    1. Well it sure worked for GW Bush

      • Terry says:

        yeh, that's it, it's Bush's fault.

        • jerry b baker says:

          It has to be Bush's fault that Obama has spent 17 Trillion Dollars in 3 1/2 years!

      • nolol says:

        Google 'tu quoque' and then get back to us. Or not.

      • @Fluidizer says:

        It's all Bush's fault, right?

      • Dianna says:

        Give me a BREAK! If you look at the reasons prior Presidents (those with any integrity) invoked the privilege, were truly matters of our nation's security. And usually small portions of information were involved. NOT in cases of suspected unconstitutional wrong-doing and not 80,000 documents!

      • Todd says:

        Are you kidding me? It is all Bush's fault?!?

        Get off that tired, wore out excuse?

    2. toledo says:

      Americans don't care about what is right here. They have their own addictions and selfish needs to tend to. Otherwise Americans would have action, which speaks louder than words.

    3. Chlo-E Vincent says:

      Dictator in chief strikes again….

    4. Steve says:

      This just proves that "FAST AND FURIOUS" goes all the way to the top…

    5. Donn says:

      MONEY TALKS BS WALKS! When you in Government you can do anything! You can STEAL KILL HIDE SEX & ALL GET AWAY WITH IT! We get do it BANG JAIL KILLED ETC! WOW what a great country we live in=Syria Egypt Iran?

    6. San Francisco says:

      Thank the Framers for the checks and balances! Even with those in place we have a monarchist at the helm getting around as much as he can. Fortunately it isn't finished yet (exec privilege) and if Congress keeps it's anger momentum going we may still come to the truth of all of Fast and Furious. Now Obama gets to take the hit from congress and possibly the Supreme Court. At any rate the stench of this whole thing is getting stronger and in an election year. Bye bye Obama!!

    7. Sedula says:

      THIS IS A MUST READ ARTICLE. read, read, read…

    8. Yorkshire says:

      What did BO know, and when did he know it. 40 years later and the same ol' stuff. Barack Milhous Obama and Eric Withholder.

    9. Dictator in chief! I can't believe he is still in office after everything he has done. Oh yes! I forgot if you criticize or call him out you are racist. No one wants to be labeled for reporting
      The truth.

    10. directorblue says:

      Including Gaziano's opinion, here are "the top 10 takeaways from the Obama/Holder cover-up":

    11. Lawrence Cahn says:

      Just imagine 4 more years without any concern as to what the voting public thinks. You are witnessing the establishment of absolute unregulated power.

    12. madog2 says:

      No thanks. You will only use your power to control free speach to erace anything I write. When you ask for comments and then refuse to print them because they may offend someone what's the point?

    13. Nancy says:

      What's to stop these bozos from destroying documents before the courts make a ruling as to the legitimacy of the executive privilege invocation? Do we still believe this administration can act in a honest manner?

    14. Lloyd Scallan says:

      More that a year ago, many of us realized Obama was fast becoming this nation's first dictator. How much more proof does the rest of America need before they come to the correct collusion?

    15. MBelcher says:

      These horros of abuses directed to our constitution can only happen when the so call free press, becomes the voice of a currupt and power yielding administration . It is heart breaking to see how our media has become so shackled in curruption. Shades of Third World

    16. MBelcher says:

      It is heartbreaking and sad to see how our beloved Constitution is being trampled and abuse by this Administration and our "Free Press" is shackle with the abusers. This conduct can only happen in despotic governments and Oligarchy. I am praying that there will be a change soon.

    17. MBelcher says:

      I have no other comments. If my previous comments can not be approved so be it.

    18. The one factor that I'm not seeing anyone comment on to date is the great deal of success in applying the "running the clock out by stonewalling" strategy. By the time the full House of Representatives votes affirming AG Holder's contempt of Congress (assuming that they do), it will be weeks on before anything begins to move forward on a judicial front. A hearing in Federal District Court might be "expedited," meaning perhaps a month or so, but the Regime – err – Administration will surely appeal any rulings that go against them. Ditto for Congress. As they remain figuratively locked in battle, the clock will keep on ticking and before you know it, the election is here and gone. I'm further apprehensive about anything really happening of significance because I just can't see the level of anger and outrage on the part of Congress and the American people holding steady over a long period of time.

      I've been on top of the F&F story for well over a year, and have been totally exasperated that little or no coverage of this debacle has been ongoing. It's been largely "off the radar" for several months as far as most of the legacy media is concerned. I fear that what we're witnessing at the present time is nothing more than a display of classic DC Kabuki Theatre, designed for purposes of distraction and "bread and circuses" for the masses.

      I hate to say it, but I'm thinking that the Congressional Oversight Committees have been outflanked by the Chicago Thug Political Machine known as the Obama Administration on this one. Attorney General Holder has stonewalled and obfuscated successfully for well over a year, and now has passed the stonewalling and obfuscation on to Dear Leader, Comrade Obama, who will certainly kick this can as far and long down the road as he is able to. The legacy news media outlets will toy with the topic for as long as it serves their purposes. Then, it will be tossed aside for the next best "if it bleeds, it leads" story du jour. I doubt that the American public will ever know the truth about who was responsible, who knew what and at what point did they know it. The families of all those killed or maimed by the "walked guns" on both sides of the border will probably never get the justice or closure that they deserve.

      The only hope I hold out is the there is significant collateral damage to the Administration as the events progress. The sycophant legacy media has been carrying water for the "Chosen One" for way longer than I ever thought possible. Recent signs that they're beginning to awake from their self-imposed slumber suggests that there is still a possibility that the story will become so large and unavoidable that even MSNBC will have to admit that when it looks like a duck, walks like a duck, quacks like a duck, etc…

    19. Curious George says:

      What was the intent of Fast and Furious?
      Was it to have political ammunition for the abolition of the Second Amendment?
      It is estimated that $40 billion dollars of drugs enters the US across the border; is it possible that the administration was looking to get a piece of the action by supplying the drug cartels with quality weapons?
      Will the US citizens ever get the full story?
      It appears there are more questions than answers.

    20. Luke says:


      It's about time someone said it.

    21. Ma I Ab says:

      Why did B Obama invoke the privilege if the W House is not implicated. He says they provided all docs asked for. Then why the exec priv? Over what, if they provided all!

    22. Kevin Rogers says:

      Though this appears to be an adolescent game Obama and Holder are "playing" by invoking Executive Privilege at the last minute, it is deadly serious. Moreover, if the Republicans want to get some press coverage of this, they ought to point out that the cover-up of this murder, can make Obama, Jarrett, and Holder accessories to murder. In invoking the privilege in such a childish manner, it would seem that it is not out of the realm of possibility that this rises to the level of an impeachable offense. Also, if there happens to be a conspiracy amongst the "journolistas" to downplay this, they are involved in treasonous behavior.

      This scandal, regardless of the political plusses and minuses the Republicans think could be attached, should now be investigated as a possible impeachment scandal, particularly the cover-up, and the false statements to congress. The last I knew, false statements made during the course of a murder investigation, in many jurisdictions, carry the potential of the death penalty. That's the seriousness that Boehner and the rest of the leadership ought to be hammering the Democrats with. Watergate shouldn't even be mentioned in the same breath, as Watergate doesn't come close to the level of criminality that was behind this "F &F" investigation. Republicans need to stand up and do the right thing by the murdered Border Patrol Agent, who gave his life protecting this country, the least you Republicans could do is put your jobs on the line.

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