The president’s invocation of executive privilege just months before an election to keep from exposing wrongdoing in the Justice Department is a serious and constitutionally suspect move. The political risk to Obama is significant so one of two situations likely is at issue: The president is aware of information so damning that it’s worth taking the heat for this Nixon-like maneuver or Attorney General Eric Holder, out to save his own skin (whether he lied to Congress under oath is central to the House investigation), cajoled the president into acting rashly and improperly.
The Wall Street Journal editorial board aptly sums up where we are: “On this case, Congress has been seeking internal emails and documents not about advice to the President but between Justice officials to see if they misled Congress. Mr. Holder has been around the Beltway long enough to know that these kinds of communications aren’t typically protected by executive privilege, and that Congress eventually gets its way.” But “eventually” might not mean before the election.
To be clear, the basis for invoking the privilege is exceptionally weak here. Former Bush Justice Department official Hans von Spakovsky writes:
The House Oversight and Government Reform Committee has received much of its relevant information from whistleblowers, not the DOJ, including copies of six Operation Fast and Furious wiretap applications that Attorney General Eric Holder refused to provide. Contrary to the sworn position taken by Holder that the “inappropriate tactics” (as he now admits) in Operation Fast and Furious “were not initiated or authorized by Department leadership in Washington,” those wiretap applications as well as other internal e-mails show that political appointees in the leadership, such as Assistant Attorney General Lanny Breuer, were well aware of the operation and the dangerous tactics being used.
Yet Holder has refused to answer — or provide the documents that would answer — the critical question being investigated by the House Committee: Who were the senior officials at DOJ who were told about and/or approved this irresponsible operation, and what was the law enforcement rationale for doing so?
Note, if we are to believe the White House, there is no issue of protecting advice to the president. This is about how the Justice Department mishandled its operation and whether its officials actively tried to mislead Congress.
Sen. Charles Grassley (R-Iowa) unloaded, yesterday sending a letter to the president, which read in part:
The Attorney General was not clear in response to my question whether he believed that executive privilege could be asserted with regard to that document or others like it. Rather than executive privilege, the Attorney General talked about “deliberative process.” He indicated a willingness to provide that document and others like it, if the possibility of contempt were to be taken off the table. Yet this morning, it appears that you may be claiming executive privilege over the very same type of document — internal Justice Department communications not involving the White House — that the Attorney General said he was willing to provide.
Can you please provide a more precise description of the scope of your executive privilege claim? Are you asserting it only with regard to documents called for by the subpoena that may have involved communications with you? Or are you extending your claim to records of purely internal Justice Department communications, not involving the White House?
Earlier in the day Grassley released a statement on yet another about-face by DOJ:
The Justice Department has retracted a second statement made to the Senate Judiciary Committee. During a hearing last week, Attorney General Eric Holder claimed that his predecessor, then-Attorney General Michael Mukasey, had been briefed about gunwalking in Operation Wide Receiver. Now, the Department is retracting that statement and claiming Holder “inadvertently” made that claim to the Committee. The Department’s letter failed to apologize to former Attorney General Mukasey for the false accusation. This is the second major retraction the Justice Department has made in the last seven months. In December 2011, the Department retracted its claim that the ATF had not allowed illegally purchased guns to be trafficked to Mexico. . . .
This is the second time in nearly seven months that the Department has gotten its facts wrong about gunwalking. Attorney General Holder accused Attorney General Mukasey, without producing any evidence, of having been briefed on gunwalking in Wide Receiver. The case Attorney General Mukasey was briefed on, Hernandez, is fundamentally different from both Wide Receiver and Fast and Furious since it involved cooperation with the Mexican government. Attorney General Holder’s retraction should have included an apology to the former attorney general.
“In his eagerness to blame the previous administration, Attorney General Holder got his facts wrong. And his tactic didn’t bring us any closer to understanding how a bad policy evolved and continued. Bad policy is bad policy, regardless of how many administrations carried it out. Ironically, the only document produced yesterday by the Department appears to show that senior officials in the Attorney General’s own Department were strategizing about how to keep gunwalking in both Wide Receiver and Fast and Furious under wraps.”
Obviously there are grounds for the House to continue its investigation. Holder, unlike Bush-era officials subpoenaed by Congress, heads a department subject to congressional oversight. Not wanting to tell Congress who messed up or to provide information as to whether Holder lied to Congress is not the basis for invoking a privilege. In fact, it’s obstruction.
Moreover, even if the privilege was appropriate, it is waivable. Why not do that? Again, only an egregious set of facts or Holder’s desperation would explain clinging to questionable privilege that is certain to engender claims of a “coverup.”
Obama has made Holder’s refusal to cooperate his own defiance of Congress. The president, not Holder alone, is blocking the inquiry. Let’s see if the media or some wary Democrats turn up the heat on a president who refuses to allow his administration to be held accountable.