Obama raises le­gal eye­brows with priv­i­lege claim

The Washington Times Weekly - - Politics - BY DAVE BOYER

Pres­i­dent Obama could be on shaky le­gal ground with his as­ser­tion of ex­ec­u­tive priv­i­lege in a con­gres­sional in­ves­ti­ga­tion that has been go­ing on for a year, ac­cord­ing to schol­ars who study the lim­its of pres­i­den­tial power.

Louis Fisher, a former spe­cial­ist on the sep­a­ra­tion of pow­ers at the non­par­ti­san Con­gres­sional Re­search Ser­vice, said he found the ad­min­is­tra­tion’s ar­gu­ments “ex­tremely un­per­sua­sive.”

Mr. Fisher noted that At­tor­ney Gen­eral Eric H. Holder Jr., in a let­ter to the pres­i­dent, cited the need to pro­tect the Jus­tice De­par tment’s “de­lib­er­a­tive process” in re­spond­ing to the con­gres­sional in­quiry into a botched gun-run­ning op­er­a­tion.

“Yet he ad­mits through­out his let­ter to Obama that the depart­ment has reg­u­larly pro­vided the House com­mit­tee with doc­u­ments” in­volved in draft­ing a par­tic­u­lar let­ter to the com­mit­tee on Feb. 4, 2011, Mr. Fisher said.

“He states that the depart­ment ‘has al­ready shared with the com­mit­tee over 1,300 pages of doc­u­ments con­cern­ing the draft­ing of the Feb. 4 let­ter,’ “Mr. Fisher said. “In shor t, Holder was willing to re­lease doc­u­ments about that de­lib­er­a­tive process.”

Mr. Fisher, who has tes­ti­fied be­fore Congress and writ­ten a book about ex­ec­u­tive priv­i­lege, also said Mr. Holder re­peat­edly cites “the fun­da­men­tally false no­tion that when Congress wants in­for­ma­tion from the ex­ec­u­tive branch, it must be in fur­ther­ance of a ‘le­git­i­mate leg­isla­tive re­spon­si­bil­ity.’ “

“The con­sti­tu­tional right of Congress to pur­sue over­sight is as le­git­i­mate as its leg­isla­tive func­tion,” Mr. Fisher said. “Over­sight is also es­sen­tial in in­ves­ti­gat­ing cor­rup­tion and il­le­gal ac­tiv­ity in the ex­ec­u­tive branch.”

Doc­u­ments re­quested by House Over­sight and Govern­ment Re­form Com­mit­tee Chair­man Dar­rell E. Issa, Cal­i­for­nia Repub­li­can, in the Fast and Fu­ri­ous gun­run­ning op­er­a­tion “should not qual­ify for ex­ec­u­tive priv­i­lege,” said Maureen Martin, se­nior fel­low for le­gal af­fairs at the Heart­land In­sti­tute, a con­ser­va­tive think tank based in Chicago.

“The Supreme Court has held that ex­ec­u­tive priv­i­lege is ‘an ex­tra­or­di­nary as­ser­tion of power not to be lightly in­voked,’ “she said in a state­ment. “It is in­tended to safe­guard de­lib­er­a­tions in the ex­ec­u­tive branch over what course of ac­tion to take. That was de­cided long ago as far as Fast and Fu­ri­ous is con­cerned.”

But Steven D. Sch­winn, an as­so­ciate pro­fes­sor of law at the John Mar­shall Law School in Chicago, said he thinks Mr. Obama’s claim of priv­i­lege is valid.

“The com­mit­tee ap­pears to seek ma­te­rial re­lat­ing to purely in­ter­nal ex­ec­u­tive de­lib­er­a­tions about how to re­spond to com­mit­tee and press in­quiries, and not to the sub­stance of the pro­gram and other mat­ters,” Mr. Sch­winn said. “Largely for the rea­sons that the at­tor­ney gen­eral gives in his let­ter to the pres­i­dent, I think he’s right that this ma­te­rial is cov­ered by ex­ec­u­tive priv­i­lege as against the com­mit­tee’s re­quest for it.”

The White House de­fended its as­ser­tion of ex­ec­u­tive priv­i­lege on June 20, say­ing Mr. Obama has used the tac­tic only once, far less of­ten than his pre­de­ces­sors.

But schol­ars say that what mat­ters in court is the le­gal va­lid­ity of pres­i­den­tial claims of priv­i­lege, not their fre­quency. The move also was awk­ward for a pres­i­dent who claims to be run­ning for re-elec­tion as hav­ing the most trans­par­ent ad­min­is­tra­tion in his­tory, and it opened a new front in Mr. Obama’s on­go­ing feud with con­gres­sional Repub­li­cans.

A court de­ci­sion dur­ing the ad­min­is­tra­tion of Pres­i­dent Clin­ton is con­sid­ered one of the most de­fin­i­tive on the sub­ject of pres­i­den­tial priv­i­lege. The case in­volved Agri­cul­ture Sec­re­tary Mike Espy, who came un­der in­ves­ti­ga­tion by an in­de­pen­dent coun­sel in 1994 over ac­cu­sa­tions of im­proper gifts. (He re­signed and was in­dicted, but was ac­quit­ted.)

A grand jury sub­poe­naed a re­port that the White House Coun­sel’s Of­fice had pre­pared for Mr. Clin­ton on the Espy case, and Mr. Clin­ton cited ex­ec­u­tive priv­i­lege in re­fus­ing to turn over some of the doc­u­ments. A fed­eral ap­peals court de­ci­sion in 1997 made clear that such claims are lim­ited to White House of­fi­cials, ac­cord­ing to the Con­gres­sional Re­search Ser­vice.

“The court’s opin­ion care­fully dis­tin­guishes be­tween the ‘pres­i­den­tial com­mu­ni­ca­tions priv­i­lege’ and the ‘de­lib­er­a­tive process priv­i­lege,’ “the CRS re­port stated. “Both, the court ob­served, are ex­ec­u­tive priv­i­leges de­signed to pro­tect the con­fi­den­tial­ity of ex­ec­u­tive branch de­ci­sion-mak­ing. But the de­lib­er­a­tive-process priv­i­lege, which ap­plies to ex­ec­u­tive branch of­fi­cials gen­er­ally, is a com­mon-law priv­i­lege that re­quires a lower thresh­old of need to be over­come, and ‘dis­ap­pears al­to­gether when there is any rea­son to be­lieve govern­ment mis­con­duct has oc­curred.’ “

Mr. Holder and a top deputy de­fended the claim by say­ing the doc­u­ments are not rel­e­vant to the orig­i­nal Fast and Fu­ri­ous op­er­a­tion, and that turn­ing over such doc­u­ments would have a chill­ing ef­fect on the abil­ity of a pres­i­dent’s top aides to give him ad­vice con­fi­den­tially.

A White House spokesman said Mr. Obama “has gone longer with­out as­sert­ing the priv­i­lege in a con­gres­sional dis- pute” than any other pres­i­dent in the past three decades. The White House said Pres­i­dent Ge­orge W. Bush as­serted ex­ec­u­tive priv­i­lege six times, while Mr. Clin­ton did so 14 times.

Mr. Bush as­serted ex­ec­u­tive priv­i­lege to block re­lease of doc­u­ments and tes­ti­mony un­der oath by top White House aides, in­clud­ing White House Coun­sel Har­riet Miers, con­cern­ing the ad­min­is­tra­tion’s fir­ing of nine fed­eral pros­e­cu­tors in 2006. Those aides later gave tes­ti­mony in pri­vate, un­der a deal ar­ranged by the Obama ad­min­is­tra­tion.

But the use of that priv­i­lege is one that Mr. Obama tried to ex­ploit as a can­di­date for pres­i­dent. As a se­na­tor in 2007, Barack Obama ac­cused Mr. Bush of try­ing to hide be­hind ex­ec­u­tive priv­i­lege in the case of the fired U.S. at­tor­neys.

“There’s been a ten­dency, on the part of this ad­min­is­tra­tion, to try to hide be­hind ex­ec­u­tive priv­i­lege ev­ery time there’s some­thing a lit­tle shaky that’s tak­ing place,” Mr. Obama told CNN’s Larry King. “I think the ad­min­is­tra­tion would be best served by com­ing clean on this. There doesn’t seem to be any na­tional security is­sues in­volved.”

He added, “There doesn’t seem to be any jus­ti­fi­ca­tion for not of­fer­ing up some clear, plau­si­ble ra­tio­nale for why th­ese U.S. at­tor­neys were tar­geted when by all as­sess­ments they were do­ing an out­stand­ing job. I think the Amer­i­can peo­ple de­serve to know what was go­ing on there.”

A White House aide said the claim of ex­ec­u­tive priv­i­lege was in re­sponse to a con­gres­sional in­ves­ti­ga­tion that is “all pol­i­tics.”

Rep. Eli­jah E. Cum­mings of Mary­land, the com­mit­tee’s rank­ing Demo­crat, said claims of priv­i­lege should be used spar­ingly. But in this case, he said, the ad­min­is­tra­tion was “forced into this po­si­tion by the com­mit­tee’s un­rea­son­able in­sis­tence on press­ing for­ward with con­tempt de­spite the at­tor­ney gen­eral’s good-faith of­fer” to pro­vide doc­u­ments to the com­mit­tee af­ter a joint re­view be­tween the panel and Jus­tice.

Pres­i­dents typ­i­cally cite ex­ec­u­tive priv­i­lege to pro­tect aides within the White House un­der the rea­son­ing that a pres­i­dent’s clos­est ad­vis­ers should be able to give their ad­vice freely in pri­vate.

But Mr. Obama’s as­ser­tion of ex­ec­u­tive priv­i­lege in the Jus­tice Depart­ment’s Fast and Fu­ri­ous op­er­a­tion has crit­ics ques­tion­ing whether the pres­i­dent him­self be­came in­volved in the in­ter nal dis­cus­sions about the ad­min­is­tra­tion’s re­sponse to the probe.

“Un­til now, ever yone be­lieved that the de­ci­sions re­gard­ing Fast and Fu­ri­ous were con­fined to the Depart­ment of Jus­tice,” said Bren­dan Buck, a spokesman for House Speaker John A. Boehner, Ohio Repub­li­can.

“The White House de­ci­sion to in­voke ex­ec­u­tive priv­i­lege im­plies that White House of­fi­cials were ei­ther in­volved in the Fast and Fu­ri­ous op­er­a­tion or the cover-up that fol­lowed. The ad­min­is­tra­tion has al­ways in­sisted that wasn’t the case. Were they ly­ing, or are they now bend­ing the law to hide the truth?” Mr. Buck said.

It’s also an un­com­fort­able po­si­tion for a pres­i­dent who hails his ad­min­is­tra­tion’s trans­parency, for ex­am­ple, in mat­ters such as re­leas­ing White House vis­i­tor logs. As a can­di­date, Mr. Obama pledged to en­force “a new stan­dard of open­ness.”

“We’re con­stantly try­ing to open up the process,” Mr. Obama said in Jan­uary 2010.

When he was cam­paign­ing for the pres­i­dency in 2007, Mr. Obama promised to re­serve the use of ex­ec­u­tive priv­i­lege for cases of na­tional security or “tra­di­tion­ally sen­si­tive mat­ters.”

In 2004, Mr. Fisher noted, the Bush ad­min­is­tra­tion ini­tially re­fused to al­low Na­tional Security Ad­viser Con­doleezza Rice to tes­tify in pub­lic be­fore the 9/11 com­mis­sion. White House Coun­sel Al­berto Gon­za­les ar­gued that the sep­a­ra­tion of pow­ers was at stake, but he re­versed him­self and al­lowed Ms. Rice to tes­tify.

Dur­ing Mr. Bush’s pres­i­dency, the Repub­li­can tried to greatly ex­pand pres­i­den­tial pow­ers, both to pre­vent dis­clo­sure of in­ter­nal White House com­mu­ni­ca­tions and to dis­re­gard por tions of laws with which he didn’t agree.

Mr. Clin­ton claimed ex­ec­u­tive priv­i­lege to try to shield his wife, first lady Hil­lary Rod­ham Clin­ton, from ques­tions about the White­wa­ter real es­tate scan­dal and the Mon­ica Lewin­sky af­fair. Courts re­jected his claims in both cases.

A re­port in 2008 by the Con­gres­sional Re­search Ser­vice said the ad­min­is­tra­tions of Pres­i­dents Ge­orge H.W. Bush and Mr. Clin­ton took the po­si­tion that ex­ec­u­tive priv­i­lege ex­tended to rec­om­men­da­tions made to se­nior of­fi­cials and com­mu­ni­ca­tions of se­nior pol­i­cy­mak­ers through­out the ex­ec­u­tive branch, in­clud­ing within the White House or be­tween the White House and any fed­eral depart­ment or agency.

Re­searcher John Sopko con­tributed to this re­port.


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