Why Obama's Claim of Executive Privilege Won't Hold
Why Obama's Claim of Executive Privilege Won't Hold
1. Attorneys General do not get executive privilege on their own; federal agencies do answer to Congress as part of their oversight capacity, and Holder has to comply with lawful subpoenas. In order to claim executive privilege, Holder and the White House have to claim that the documents in question consisting of tens of thousands of pages relate directly to consultations and advice Obama engaged in during the course of his job as President.
2. However, the White House has consistently claimed never to have known about Operation Fast and Furious until its exposure with the death of Border Patrol agent Brian Terry. Holder and other officials at the Department of Justice and the ATF have made the same claim while testifying to Congress.
3. In order to make executive privilege stick and keep the documents out of the hands of Congress, the entire Obama administration will have to make the opposite claim, and tell a court that the documents cant be released because they relate directly to actions taken by Obama himself.
4. Therefore, the Obama administration cant claim executive privilege for actions that dont involve the President, or his immediate staff in advising the President. The claim of privilege appears a tacit admission that previous claims that Obama and his White House staff were unaware of Operation Fast and Furious and uninvolved in it were false. That opens up potential criminal charges for anyone who testified differently under oath for perjury and obstruction of justice the end results of most executive-branch scandals, most famously in Watergate.
5. Even that might not be enough. In the case involving the US Attorneys, there was no evidence that laws had been broken, since Presidents can dismiss political appointees at will. In Operation Fast and Furious, two American law-enforcement agents have been murdered with guns that the ATF allowed to flow over the border, violating the law and official procedure not to mention hundreds dead in Mexico for the same reason. Under the precedent set in US v Nixon, a court would almost certainly find that a Congressional investigation into potential criminal activity would trump a claim of executive privilege, especially after the apparent misrepresentation of White House involvement in the operation.
6. By asserting executive privilege, the Obama administration has made it clear that they fear the exposure of ATF and Department of Justice documentation, and that Obama himself has some connection to the papers. The question that arises has more than a whiff of Watergate to it: what did the President know, and when did he know it? Thanks to the claim of executive privilege, the media will no longer be able to ignore the deadly outcomes of Operation Fast and Furious, and the timing of this scandal could ensure that Obama wont have the ability to call on executive privilege after January.
7.. Until yesterday, there was little reason to believe that scandals would play a major role in the 2012 presidential election. That isnt to say that the Barack Obama administration has been scandal-free, as Jonathan Alter tried to argue last year. The failure of Solyndra and the connection to the Presidents fundraisers has been debated in the election cycle, but only as an issue to jobs and Obamas economic and energy policies, along with other green-energy stimulus recipients who have either gone bankrupt or are approaching that status now.
Why Obama's Claim of Executive Privilege Won't Hold