This article originally appeared on the Cato Institute's Cato@Liberty blog.
The House Government Oversight Committe has voted, on party lines, to hold Attorney General Eric Holder in contempt for failing to turn over documents related to the bizarre “Fast and Furious” gun sting operation (which program/issues Dave Kopel helpfully summarizes). The committee, headed by Rep. Darrell Issa (R-CA), took this action despite President Obama’s assertion of executive privilege over the documents.
Now, I haven’t been following the Fast and Furious scandal that closely — seems like a dumb idea to give guns to criminal gangs, but what do I know about law enforcement? — but this latest development, raising the Holder-Issa impasse to a constitutional battle between the executive and legislative branches, is worth noting. I can’t add much to the excellent and concise analysis provided by the Heritage Foundation’s Todd Gaziano (a member of the U.S. Commission on Civil Rights who formerly served in the DOJ’s Office of Legal Counsel and also as chief counsel to the House Oversight Committee), but I will highlight three points:
1) Executive privilege is a qualified, not absolute, doctrine that is meant for certain circumscribed purposes — such as to allow the president to receive candid advice from his advisers — not a blanket protection of anything in the executive branch the president wants not to be disclosed. (And it certainly can’t be invoked to shield wrongdoing.) Because it is qualified, the president must identify the documents not disclosed and provide a description of the privilege asserted, what attorneys call a “privilege log.” This has not been done here.
2) For executive privilege to apply here, the documents at issue have to be related to something the president is involved in, most likely in this context communications to/from the president regarding the Fast & Furious policy. If Obama knew nothing about F & F, I have trouble seeing the basis for the privilege.
3) If the president did know something, let alone have a hand in the decision making, Congress is entitled to learn at least something about it. Even when there’s a sound basis for invoking executive privilege, the American people’s need for information often outweighs whatever presidential interest is at issue. As Todd puts it, “the President is required when invoking executive privilege to try to accommodate the other branches’ legitimate information needs in some other way. For example, it does not harm executive power for the President to selectively waive executive privilege in most instances, even if it hurts him politically by exposing a terrible policy failure or wrongdoing among his staff. The history of executive–congressional relations is filled with accommodations and waivers of privilege. In contrast to voluntary waivers of privilege, Watergate demonstrates that wrongful invocations of privilege can seriously damage the office of the presidency.” (The mention of Watergate is doubly fitting because this past Sunday marked 40 years since the break-in that ultimately brought down the Nixon presidency.)
I doubt that President Obama’s assertion of privilege in this episode has yet risen to Nixonian standards of contempt for the rule of law, but it is a dangerous bit of political gamesmanship designed to delay and push back on the Oversight Committee/Congress’s demand for documents. As the committee showed in its vote today, however, both sides are ready to play this high-stakes game of chicken.
Holder’s contempt citation now goes to the floor of the House, where I’m sure many Republican members are salivating at the chance to score political points against an unpopular president and attorney general. (Recall that the House found former White House counsel Harriett Miers and Chief of Staff Josh Bolten in contempt of Congress for failing to answer questions regarding the firing of U.S. attorneys during the Bush administration.) We may also see a lawsuit regarding the executive privilege claim, and even, if no agreement on document-production is reached, articles of impeachment drawn up against the attorney general.
Suffice it to say, what began as a head-scratchingly bad policy that cost many lives (including border patrol agent Brian Terry) has now become a large stonewalling and possibly cover-up operation. As with Watergate, Iran-Contra, the Clinton-Lewinsky affair, and so many other presidential scandals, the obstructive aftermath seems to be eclipsing the initial wrongdoing in legal and political importance.