Slow and furious legal fight looms
President Barack Obama’s first-ever use of executive privilege to block a congressional investigation is a reminder of the uncertain dividing line between congressional and executive branch authority — and the even murkier legal process for deciding who wins the upper hand in such fights.
In a letter to Obama on Tuesday, Attorney General Eric Holder said the documents a House committee is seeking about the Justice Department’s response to Operation Fast and Furious “fit squarely within the scope of executive privilege.”
Continue ReadingRepublicans called the privilege claim frivolous, particularly since the documents don’t appear to involve White House officials or presidential decision making.
“The assertion is transparently invalid in that it is not credible that every document withheld involves a communication authored or solicited and received by those members of an immediate White House adviser’s staff,” Rep. Trey Gowdy (R-S.C.) said in an amendment offered during the House Oversight and Government Reform Committee session, during which members voted along party lines to recommend holding Holder in contempt of Congress.
Sen. Chuck Grassley (R-Iowa) said in a statement that Obama’s action “raises monumental questions,” including: “”How can the president assert executive privilege if there was not White House involvement?”
Legal experts say the question of how far executive privilege extends down into the executive branch has never been definitively resolved by the courts.
“There isn’t a lot of law on it,” said Stan Brand, a former House counsel now in private practice. “It’s each side brandishing their own internal opinions, which aren’t ratified by any court.”
The privilege’s scope when Congress is the party seeking information is particularly uncertain.
“On the congressional side, … nobody can say what the rules are with much definiteness,” said Neil Eggleston, a lawyer who defended the Clinton White House in several privilege fights.
The existence of a privilege to keep White House communications confidential under most circumstances is well established. Some presidents, like Richard Nixon, suggested that the privilege should extend to virtually everyone in the executive branch, but legal scholars have been skeptical of that since it could render almost the entire government immune to routine congressional oversight.
“Nixon got in trouble for saying that members of the executive branch are an extension of the president himself. … That was a huge stretch,” said Mark Rozell, a professor of public policy at George Mason University and author of a book on executive privilege. “This principle has been established as distinctly a presidential power. … It belongs to him and certain high-ranking officials in the White House who may be privy to internal deliberations. It’s not this broad-based principle that applies to the executive branch all the way down to the middle and lower levels.”
However, one lawyer who has generally defended congressional demands for executive branch information said the communications in dispute now — involving how Holder and his top aides responded to the congressional probe into Fast and Furious — may well be covered by the privilege.
“While often that’s questioned if you push it all the way down the civil service, here we’re talking about the level of the attorney general and the assistant attorney general for legislative affairs and that’s not so far down,” said Charles Tiefer, a former acting House counsel and a law professor at the University of Baltimore. “These are not low-ranking offices.”
Tiefer said Obama’s assertion was “a fair claim, but still not as strong a claim as deliberations at the White House level.”
Another key question regarding Obama’s privilege claim is just what can Congress do to fight it?
Brand said the process of holding the attorney general in contempt grabs headlines but its immediate practical consequences for Holder and the administration are minimal.
Readers' Comments (16)
Wow! Those documents Eric Holder and the Obama administration are so desperate to cover up must be truly damning!
Perhaps, the administration just doesn't like fishing expeditions.
I recommend Rep. Issa investigate himself for: "... arrests for weapons charges and auto theft, suspicions of arson, and accusations of intimidation with a gun...". We don't need that kind of person in Congress.
DOJ Retracts Holder's 'Inadvertent' False Statement to Congress
On Monday, the Department of Justice was forced to once again retract inaccurate and misleading information provided to Congress about the Fast and Furious scandal.
It turns out Justice couldn't produce anything to back up Holder's claims that any former Attorney General was briefed on Operation Wide Receiver, so they were forced to retract his statement in a letter dated June 18th, just two days before his contempt proceeding.
This is not the first time DOJ has been forced to retract statements to Congress about Fast and Furious. Last year, the DOJ sent a letter to Congress claiming that gun walking was not sanctioned by the ATF. That claim turned out to be false, and the DOJ later retracted the letter and offered documents to explain how the false information made its way to Congress.
PURE CORRUPTION AND LIES!!!
Actually the Democrats LOVE "fishing expeditions" when the shoe is on the other foot.
And, by, stating the the The Regime doesn't like fishing expeditions - that's an admission that the regime is guilty of crimes past and present that it doesn't want to be discovered.
The Fishermen: investigations/law enforcers/oversight./congress.
The only people who don't like "fishing expeditions" are criminals as criminals naturally have an aversion to being caught.
Those who have nothing to hide will say: "investigate fully, and leave no stone unturned".
Those who have committed crimes will not cooperate fully and resort to things such as attempting "executive privilage".
This is only going to get steadily worse for The Regime now. The taint of wrongdoing, cover-up and criminality now fully permeates The Regime.
From what I have heard first Holder said No Involvement in the Program. Then came back and said he "Lied"? Oops, didn't know about the program? Either way as I understand it the Congress wants the correspondence between that time. That is what is being asked and being refused to turn over. The Pres privilege is similar to Nixon "Fall on the sword for your King" mantra" to protect his subordinates. It didn't work and Watergate went through anyway. (Notice the tape were finally turned over) . Last I do not understand why Obama should invoke Privilege. If last year he and holder and the DOJ said they did not know anything about the Program and Obama said so publicly how can he now want to shield correspondence he did not know anything about? Seem also the reason for the request should be made public. Is it national security? Let us get the transparency in the open. Just to note I see all the underlings are making comments, media briefings, etc, all in an attempt to keep Obama off the Media if they ask the direct question on his involvement. (A political move). In conclusion this is just a big cover-up and the longer it goes on the deeper the WH will sink because of the apparent hiding and maneuvering around this issue.
One of the very interesting elements of this matter is that the Chairman of the Repub committess, Rep Rep Issa, is not only the wealthest member of Congress, but has a rap sheet a mile long and 10 feet wide....most of his crimes related to weapon charges...many while being in the military....then there are the charges for arson and auto theft....but the auto theft experience lead to making one of the first auto alarm systems which turned into a huge business for himself..
But my question where were the Repubs while this program was run for years during the Bush/Cheney administration?? Not one word of complaint from this committee or any other....
The crimes that the Repubs are talking about have little to do with the way the President's staff have run the program, and a great deal more to do with the way it was run under Bush/Cheney...it smells way to much like politics than a real issue.....
Now that the Justice Department has admitted misleading the Investigating Committee regarding President Bush's involvement in Fast & Furious, it's time they came clean on the rest. Holder has compromised the integrity of our Justice Department, and Obama is compounding the problem by protecting Holder via Executive Privilege.
Since most of the crimes were under the Bush/Cheney administration this smells much more like a political issue....but the Repubs have to come up with something that makes the Prez look bad...and with Issa leading the hunt it makes it even more interesting...just google his name and check out his rap sheet....this dude has been in more trouble than most mass murders..
@meyer,
Sir, if what you say is true about Bush/ Cheny and they could be blamed, then why wouldn't Holder turn over the documents and have the Justice Dept start a case against them? The Democrats on the committe have the option to haul the people from the Bush Administration before them and question them. Why not release the documents proving it was all Bushes fault? Did it bother you that Ted Kennedy was a murderer or that Robert Byrd was a Grand Dragon in the KKK as much as Issa's record bothers you? Which is the worst crime? Leaving a woman to drown for 24 hours, hanging blacks from trees or discharging your weapon while in the service to your country?
The DOJ has had 18 months to deny the Republicans yesterday's "opportunity to make the President look bad". But instead after 18 months, the President throws out executive ptrivlege at the 11th hour. Now, who's making who look bad here?
The current administration foists blame on Bush all the time, so yeah, if this is all Bush's fault, then put out the evidence.
I just can't buy that the current administration wants to 'protect' the previous administration.
Now, let's say there something in there that shows the US wanted to do something to destabilize Mexico, for whatever reason.......
GOP, where are the jobs? Why haven't a jobs bill been signed? This is a smoke screen that no one cares about. I hope the House goes back to the Dems, at least the unemployed could get a job.
Some body did some body wrong song - now it is time to pay for the dance - the pit bull was very aggressive right up to the end. But then he ran to hide under the skirt of Executive edict and they both said before they had no conversations or communications on the matter. This is a very weak case and the courts will toss it out. IMO
Obamas request for exedutive privelege can mean only one thing; that he was involved and is resisting discovery. Issa should put Obama's name on his October subpeona to Holder, with a one week deadline on it.
Members of congress are not to intelligent, they should not be allowed to know how our government runs.
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