Wednesday, June 20, 2012

Faster and More Furious

President Obama's invocation of executive privilege to resist producing documents subpoenaed by Congress in connection with the investigation of Fast and Furious may turn out to be a rather large deal.

At first blush, these seems to be an extraordinary assertion of executive privilege which is most decidedly not a blanket warrant to assert confidentiality and is generally applicable to communications concerning " military, diplomatic, or sensitive national security secrets."

It is hard to see how the documents for which privilege is being asserted could qualify. They are, as reflected in this morning's letter from Deputy Attorney General David Cole, documents generated after February 4, 2011 related to the Department of Justice's response to Congress and whistleblower allegations.

February 4, 2011 is significant because it is the date of a letter in which the Justice Department misrepresented Fast and Furious to Congress. On that day, DOJ sent a letter in which it said that guns were not deliberately permitted to cross the border. They were. Attorney General Holder later described the letter as "inaccurate" but refused to agree that it was "false."

So it is far from clear that the documents requested could have involved Presidential communications (Holder says that he never discussed the matter with the President) or even any high level government official. It seems unlikely that they could have involved the type of military, diplomatic or sensitive national security matters normally thought to justify a claim of executive privilege. It looks like we have nothing beyond a generalized claim of confidentiality ot the type that the Supreme Court rejected in United States v. Nixon, 418 U.S. 683 (1974).

In fact, it seems as if the claim is that the DOJ, having misrepresented the matter to a Congressional oversight committee, is arguing that Congress is not entitled to conduct its own investigation as to  how and why that misrepresentation occurred. Instead, in today's letter, Deputy Attorney General offers to provide a "briefing" on how Congress was misled with "some" documents while others will be withheld but explained in some way.

That is, to put it mildly, a counter-intuitive proposition and a rather weak proposal. Given the lack of candor in the Department's response to date (we are, after all, discussing an "inaccurate/false" letter) and Attorney General Holder's dissembling before the committee, no reasonable person could expect a "trust us" briefing to be acceptable.

Beyond that, the President has, for whatever reason, decided to own a scandal that he presumably could have avoided. Why would we have done that?

This bears watching.

Cross posted at Purple Wisconsin.


Anonymous said...

Again, where was the complaining when his predecessor did the same thing repeatedly?

Thought so.

George Mitchell said...

It's thoughtful of Rick to maintain this blog as well as posting at Purple Wisconsin. That gives those who don't have much confidence in their opinions a chance to be anonymous.

Dad29 said...

Umnnhhh, yah.

Apples, oranges, and Anonyconfusion.

Billiam said...

Really? His predecessor got a border patrol agent killed, then claimed executive privilege when Congress investigated? I must have missed that one in the news. Gods damn my eyes, arrrrgh! Is it talk like a pirate day yet?

Anonymous said...

What national security issues were at stake when Bush used EP to shield Rove from contempt? The GOP needs to try harder.

Anonymous said...


Ahh yes, the iron law of politics: there's always a good reason when my guy does it, but when the other guy does it, well of course it's wrong.

Otherwise known as confirmation bias.

Anon 3:28 could also have mentioned George W. Bush's use of executive privilege on internal DOJ documents for an investigation into organized crime in 2001, or the use to shield the public from Cheney's energy commission studies.