The news media has been nonstop in its indignation and condemnation toward President Obama for invoking executive privilege with regard to “Operation Fast and Furious.”
To briefly summarize what brought us to the current situation: the Obama Administration told a U.S. House panel that the President is asserting executive privilege by refusing to turn over documents related to a U.S. law enforcement gun operation. President Obama invoked this privilege just before a House committee vote to hold Attorney General Eric Holder in contempt of Congress for failing to provide documents subpoenaed more than eight months ago related to the failed "Fast and Furious" operation. Guns lost in the operation, which was originally meant to track the flow of firearms between the United States and Mexican drug cartels, were found near the scene of Border Patrol Agent Brian Terry's murder in 2010.
While Congress reviews the issue of whether or not the withholding of such information is vital to our National Security, and whether or not President Obama is justified in doing so, let us examine the practice of “Executive Privilege.” When did the use of executive privilege start? Who has used it in the past? By reviewing its history, perhaps we can better understand what is happening between the White House and Congress.
The simplest definition of executive privilege is the privilege, claimed by the President for the Executive Branch of the Government, to withhold information in the public interest. Executive privilege is a claim by the President or other official of the Executive Branch that he/she need not answer a request (including a subpoena issued by a court or Congress) for confidential government or personal communications on the ground that such revelations would hamper effective governmental operations and decision making. The rationale is that such a demand would violate the principle of separation of powers among the Executive, Legislative and Judicial Branches.
Executive privilege is not mentioned in the Constitution, but, since our founding, Presidents have on occasion claimed a right to withhold information from Congress to preserve the confidentiality of that information in the face of legislative inquiry.
Further, the Supreme Court (in US vs. Nixon) ruled executive privilege to be an element of the separation of powers doctrine, and/or derived from the supremacy of the Executive Branch in its own area of Constitutional activity. Chief Justice Burger noted: "Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.”
Our first President, George Washington, claimed executive privilege in 1796, when the House of Representatives asked him to reveal details of the Jay Treaty with Great Britain. Washington refused to do so since the House was not involved in making the treaty and hence had no right to view the information.
Thomas Jefferson also asserted the privilege with regard to documents requested in the treason trial of Aaron Burr, claiming their release would endanger public safety. The Supreme Court overruled Jefferson’s claim and the documents were released.
During the period of 1947-1949 several major security cases became known to Congress. A series of investigations ensued, culminating in the Hiss-Chambers case of 1948. The Truman Administration issued a sweeping secrecy order blocking Congressional efforts from obtaining FBI data, and other executive data, on security issues. Security files were moved to the White House and Administration officials were banned from testifying before Congress on security related matters. Investigation of the State Department and other cases was stymied and the matter left unresolved.
In 1954, President Dwight D. Eisenhower instructed the Department of Defense not to share any information about its internal affairs with Congress, which was then holding the Army-McCarthy Hearings. Although Eisenhower cited national security as the reason for his order, the broad scope of his order covered a great deal of Defense Department information that had nothing to do with the hearings. In the end, Eisenhower would invoke the claim forty-four times between 1955 and 1960.
During the Watergate scandal Nixon invoked the privilege to keep from turning over tapes of White House conversations on charges that had been brought against members of his administration. The Supreme Court ruled against him. If there is a potential criminal charge, executive privilege will be denied. However, as mentioned above, at that time, the Supreme Court found a Constitutional basis for claims of executive privilege when ordering Nixon to surrender his tapes, leaving the door open for Presidents to cite it in future disagreements with Congress.
In our more recent history, since 1980, executive privilege has been used twenty-five times:
President Barak Obama – 1
President George W. Bush – 6
President William Clinton – 14
President George H. W. Bush – 1
President Ronald Reagan – 3
We do not go to court to settle the executive privilege issue once and for all because: (1) Presidents worry that, if they lose, courts will take away a valuable tool and weaken the power of the office; (2) on the other hand, if the lawmakers lose, they could permanently weaken Congress' subpoena power when it investigates Executive Branch blunders.
What happens next seems to seem the major question. Even if Holder is held in contempt, it is not clear whether or not he would be forced to do anything. Congress could file a lawsuit against him or try to arrest or fine him to force him to comply. The case could go to the local U. S. attorney for enforcement. But that's a long shot. Consider: Who is that local U. S. attorney’s boss? Holder, and ultimately, Obama, who appointed him. That is why the Justice Department traditionally declines to pursue such contempt of Congress cases. Disputes over executive privilege are usually settled with a compromise between the Executive Branch and Legislatures.
While the end of this affair is still up in the air, and while President Obama might be right in withholding documents, a real fact of the matter is that this is an election year and the people of the United States now, more than ever, are quite vocal in consistently asking of ALL politicians, Republican or Democrat, on ALL issues, “What are they hiding and why?” Without satisfying resolution, this issue cannot help but leave those questions of what and why linger through to the November election.
That being said, we also cannot forget that other Presidents have invoked executive privilege. President Obama is not the first, and we can say with a more than confident certainty, based on both precedence and Supreme Court ruling, that he will not be the last.
Until the next time, LLAP!
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It seems to me that both sides may be taking actions for political reasons. Obama wants to avoid an October surprise and the GOP is looking for every angle they can get. Even if there's nothing criminally wrong "Fast and Furious" is likely an ugly mess with many mistakes.
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