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Right Turn
Posted at 02:29 PM ET, 06/20/2012

Obama invokes privilege to halt investigation

The Post reports: “President Obama asserted executive privilege over documents related to the “Fast and Furious” operation Wednesday as a House panel moved to hold Attorney General Eric H. Holder Jr. in contempt for failing to cooperate with a related congressional inquiry.

The president’s decision to withhold the documents, his first use of executive privilege, and the House panel’s anticipated contempt citation quickly intensified a long-simmering feud between the White House and Republican lawmakers and set up a clash over the extent of presidential power that may take months to resolve.”

Let me begin by saying that if a Republican president had bypassed Congress to redraft a statute (on immigration in this administration) and cooked up fake privileges repeatedly — the Obama team did this in the Black Panther investigation and even to halt its former social secretary from testifying — there would be howls from the media and talk of impeachment. (No, I am not advocating that, in large part since we have an election coming right up.)

But make no mistake, this is a spurious claim. Heritage’s legal guru Todd Gaziano reminds us that “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.. . . 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.”

Moreover, the executive is required to use a document-by-document approach and to make documents available that are needed for Congress to do its job.

But we can now see how Obama has come full circle. As a senator he decried signing statements and invocation of executive privilege, as president he’s become the quintessential imperial president complete with czars, harassment of opponents’ donors and ham-handed efforts to bully the Supreme Court on Citizens United and then Obamacare.

John Yoo, who is second to none when it comes to defending the executive branch, told me this afternoon: “Holder is a gift that keeps on giving — for congressional Republicans. He is bringing a unique combination of political ineptness and constitutional myopia. Politically, he is sustaining a story of law enforcement incompetence that he could bring to a quick end by providing the Hill with documents that bear no national security implications (unlike the Obama administration leaks about our counter-terrorism programs).”

On the law Yoo commented, “Legally, he has given the Obama White House bad advice on the scope of executive privilege, which the Supreme Court in Nixon made clear is centered on the president’s right to discuss the most sensitive national security, military and diplomatic matters with his aides. Either the White House is admitting that President Obama was involved in the ‘Fast and Furious’ controversy (which seems hard to believe), or they are seeking to claim executive privilege to mere discussion of low-level staff with the Attorney General, which the Constitution does not recognize.”

Principled Democrats who may soon face a Romney administration had better pipe up. Otherwise the precedent will be there for vast expansion of executive power and squashing of Congress’s proper role in our system of government.

By  |  02:29 PM ET, 06/20/2012

 
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