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Executive Sacrilege

21 June 2012 @ 10:10

I don’t believe that any backstory on this whole saga is required at this point, so I’ll just concentrate on the misuse of Executive Privilege and some other items…

-Andrew McCarthy has written, I think, the best explanation of why Executive Privilege is not applicable in this situation and why Obama doing so is impertinent and, as he does in so many other areas, makes a mockery of a the justifiable purpose of Executive Privilege. This is worth quoting nearly in full so that this post stands on it’s own:

Just as there are two species of executive privilege, so there are two species of governance within the executive branch. The first involves the president’s constitutional duties. These are broadly laid out in Article II. They involve powers of the presidency that derive directly from the Constitution. Congress may not repeal, reduce, or subject them to regulation or “oversight” that thwarts the president’s ability to carry them out.

That is why I agree the “presidential communications” aspect of executive privilege is the stronger one — and why, for example, I argued that Congress had no power to compel Karl Rove to testify during the controversy over fired U.S. attorneys. Karl was a senior advisor to President Bush, a member of the White House staff whose position was not subject to Senate confirmation or otherwise dependent on Congress. He served at the pleasure of the president to facilitate the performance of the president’s constitutional duties. In this sense, he was an appendage of Pres. Bush, and Congress could no more compel him to testify than compel the president. The president is a peer, not a subordinate, of Congress; Congress does not have the power to demand testimony from the president or his confidants — at least not on matters that involve presidential communications in the execution of the president’s constitutional duties.

The second species of executive governance, however, is saliently different. It involves executive departments and agencies that are not required by the Constitution but are, instead, creatures of congressional statute. A textbook example of this is the Department of Justice. As I have argued before (here) when a related issue arose about Congress’s power to bar the Obama administration from prosecuting terrorists in civilian court, the Constitution calls for neither a Justice Department nor an Attorney General of the United States. They owe their existence to Congress alone.

There was no Department of Justice for nearly a century after the Constitution was adopted. And while the post of attorney general was established by the first Congress, it was conceived as a part-time position, with no staff, limited to providing legal advice to the president and representing the federal government in civil litigation. There was no thought that there would be a criminal law-enforcement mission for the central government, much less that the feds would regulate firearms (and do so by sending them to murderous foreign drug cartels). The Framers were quite clear that law enforcement would remain the exclusive province of the states.

I rehearse all this history because I’ve always thought it very presumptuous of the Justice Department to claim a power to conceal information from Congress when it is completely dependent on Congress for its existence and its mission. Congress could repeal the Justice Department tomorrow. Congress writes the statutes that the Justice Department enforces, is the master of the Department’s jurisdiction, and pays for everything the Department does — without which budget the Justice Department could do nothing.

As Shannen points out, the theory behind the “deliberative process” privilege is that “government decision-makers should not live in a fishbowl, and that candid, and sometimes unpopular, advice may be needed to make the best decisions.” That certainly is the theory. But the assumption underlying it is that there is some objective standard of how much of a fishbowl there should be, and that this standard should be defined by a court, regardless of what Congress thinks.

Why? If the people’s representatives seek details about the decision-making and conduct of an agency of their own making — as opposed to the decision-making of the president in the execution of, say, his constitutional commander-in-chief duties — why should it not be up to Congress to decide how much of a fishbowl it is?

I don’t think there is (or, at least, that there should be) an executive prerogative of “effective government decision-making” that allows a department or agency created by Congress to deny Congress information on the ground that disclosure would compromise its congressionally-prescribed mission. That is a judgment for Congress to make, weighing the need for the information against the risk of compromising a mission the executive would not have in the first place absent congressional authorization.

This should be a political question, not a legal one. And for that reason, I’m not very concerned about congressional excess. To be clear, I’m not saying that the Justice Department must indulge every individual member of Congress who wants information — when I was at the U.S. attorney’s office, we routinely turned down such requests, and rightly so.

I am talking about when Congress collectively acts the constitutional body created by Article I, including through its designated committees with subpoena power. If the majority holding sway in Congress were to make a frivolous or politicized request that risked the successful completion of a critical Justice Department investigation in order to score political points, that majority’s gamesmanship would be exposed by the minority and the executive branch; the irresponsible members would be punished at the ballot box. If, on the other hand, the majority were aggressively pursuing information because it was necessary to probe a matter of patent public significance — e.g., providing guns to violent drug cartels that predictably result in murders, including the killing of a federal law enforcement agent — the voters would support the majority and punish those who tried to stonewall.

Executive privilege is legitimate, and certainly has its place when it comes to the president’s constitutional duties. But it is far less compelling when asserted in an effort to keep from Congress information about the conduct of a government department that the Constitution does not require and that owes its existence to Congress.

Brilliant. This brief is chock-full of Right Reason.

-Mark Levin also weighs in with his own acuity on Facebook and this is worth quoting in full [tips of the fedora to Stacy McCain and Memeorandom]:

As the Supreme Court recognized in US v. Nixon, the Executive Branch has a legitimate interest in confidentiality of communications among high officials so that the President can have the benefit of candid advice. However, as President Washington himself recognized, that privilege does not protect the President or his underlings from embarrassment or public exposure for questionable actions.

As the Supreme Court has also recognized repeatedly, the Congress, in the exercise of its constitutional powers, has the essential power to investigate the actions of the Executive Branch.

In this case, the exercise of Executive Privilege seems, in its timing and over-inclusiveness, to be nothing less than a political delaying tactic to prevent exposure of wrongdoing and incompetence that resulted in the murder of a American law enforcement agent and injury and death of many others. Further, a wholesale claim of privilege is facially improper: the President should be held to the standard that anyone claiming privilege is held to: identify each document in a log so that privilege can be disputed. (U.S. v. Nixon, 1974)

Because among the categories of documents sought are all those relating to the recantation by Holder of testimony before Congress, the demand goes to the core of the Congressional power under Article I. In this respect, this is not a general or oversight inquiry but a determination of why the Attorney General of the United States testified falsely before Congress about his own knowledge of a federal program. Presumptively, none of this category of documents is protected by Executive Privilege for wrongdoing per se is not protected by the privilege.

The right way to proceed is to hold Holder in contempt by resolution of the House and seek authorization from the House for the Committee, by its Chairman, to proceed by civil action to compel production of the documents. (Holder will not enforce a holding of contempt against himself — and by the way, he should have authorized, say, the assistant attorney general for legal counsel, to handle the contempt matter once the House voted as at that point he is representing his own interests and not those of the nation generally). Chairman Issa should file suit in federal court in DC and seek expedited action. There is no need for Senate action. The use of this procedure has been acknowledged by the Congressional Research Service in a 2007 study. Further, a privilege log should be sought by Issa and ordered produced immediately by the court, in camera inspection done promptly by the judge, and a final order entered compelling production of all documents for which no legitimate reason justifies Executive Privilege.

Yes, some documents may be covered by EP, but the blanket attachment of that label flouts the law and the Constitution, and harms the legitimate assertion of EP by Presidents of either party in the future. The Constitution is far too important to be subject to the caprice of this President and an AG who, on its face, wants to be free from scrutiny about why he testified falsely before a Committee of Congress.

Executive Privilege is a very important implied executive power, used in various forms since the presidency of George Washington. Therefore, it’s misuse and abuse, to cover-up wrongdoing, conceal embarrassing information, or advance a political agenda, diminishes the ability of future presidents to assert it legitimately.

Obama must be quite happy with himself, as he is employing two of the key tactics found the Leftist Playbook exactly: create Chaos and delegitimize legitimate institutions and practices.

-Speaking of Richard Nixon: As I mentioned on Twitter last night: it was, indeed, fitting that Obama invoked Executive Privilege yesterday in order to, it seems, cover up crimes by his Administration as 20 June was the Fortieth Anniversary of the infamous 18-Minute Gap.

-Over at the ACLJ site, David French provides an excellent analysis of case law regarding the part of Executive Privilege [Deliberative Privilege] that Obama is invoking. This is, also, worth quoting at length:

…The President’s action was politically scandalous, but is it also a legal scandal?One of the best cases for understanding the privilege is In re Sealed Case, a 1997 D.C. Circuit decision arising out of investigations of former Clinton Secretary of Education Mike Espy. Without going too far into the weeds of the case, the Clinton White House withheld eighty-four documents from the Office of the Independent Counsel on the basis of “executive/deliberative privilege.”

The Court outlined two primary forms of executive privilege: the “deliberative process privilege” and the “presidential communications privilege.” It appears that President Obama is relying on the “deliberative process privilege,” the most common form of executive privilege assertion.

The deliberative process privilege “allows the government to withhold documents and other materials that would reveal ‘advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions are formulated.’” It does not apply only to communications with the President himself.

To qualify for the privilege, “the material must be predecisional and it must be deliberative.” Those requirements “stem from the privilege’s ultimate purpose, which is to prevent injury to the quality of agency decisions by allowing government officials the freedom to debate alternative approaches in private.”

Even if a document qualifies for the privilege, the privilege can be overcome by a sufficient showing of need. As the D.C. Circuit helpfully states, “This need determination is to be made flexibly on a case-by-case, ad hoc basis.” Well, it’s not entirely ad hoc. Courts can consider, “the relevance of the evidence,” “ the availability of the evidence,” the “seriousness of the litigation,” the “role of the government,” and the “possibility of future timidity by government employees.” There is also this important qualifier: “[W]here there is reason to believe the documents sought may shed light on government misconduct, the privilege is routinely denied . . .”

What does this all mean? As a practical matter, if this matter goes to court, the unique circumstances of this case present a serious challenge for the President. Specifically, Attorney General Holder specifically asked that the privilege encompass “documents from after February 4, 2011, related to the Department’s response to Congress.” Why does this present a challenge? Because on February 4th the Department of Justice – by its own admission – provided false information to Congress.

Does this event provide “reason to believe the documents may shed light on government misconduct?” Certainly. Does that mean that the privilege will be denied as “routinely” as other, similar privilege assertions have been denied?

Well, that’s up to the “ad hoc” judgment of the courts.

It will be denied if the judges involved are sane.

-Representative Allen West is, per usual, blunt and spot-on:

First the "Executive order" to allow illegal immigrants to compete with American jobs, now an "Executive privilege" to save Eric Holder from information that Americans deserve to see. There seems to be no line President Obama will not cross in his plan to save himself and his cronies. An American Border Patrol Agent and hundreds of Mexican citizens have lost their lives because of Operation Fast and Furious. The President’s arrogance in not understanding the rule of law and the fundamental premise of separation of powers is reflective of his narcissistic manner and it is harmful to this nation. Americans are disgusted by this and will say so the most conducive way they know how, come November.

Of course, we also reserve the right to ‘whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it’.

-Speaking of that Border Patrol Agent, Brian Terry, Jake Tapper reports [tip of the fedora to Memeorandom]:

Terry family attorney Pat McGroder on Wednesday released the following statement from Terry’s parents Josephine Terry and Kent Terry Sr.: “Attorney General Eric Holder’s refusal to fully disclose the documents associated with Operation Fast and Furious and President Obama’s assertion of executive privilege serves to compound this tragedy. It denies the Terry family and the American people the truth.”

The Terrys said that their son “was killed by members of a Mexican drug cartel armed with weapons from this failed Justice Department gun trafficking investigation. For more than 18 months we have been asking our federal government for justice and accountability. The documents sought by the House Oversight Committee and associated with Operation Fast and Furious should be produced and turned over to the committee. Our son lost his life protecting this nation, and it is very disappointing that we are now faced with an administration that seems more concerned with protecting themselves rather than revealing the truth behind Operation Fast and Furious.”

Earlier today, Josephine Terry was on Philadelphia Talk Radio 1210 WPHT.

Asked about the president’s assertion, she said, “The only thing I can say is, if he did that they apparently don’t want Issa to get the documents to see what’s in there.”

“My son and I were very, very close,” she continued. “And my son was a person that believed in justice and he believed in telling the truth. He was a man of his honor. And if anybody knew him, they knew that. And I know he would be saying ‘you know what, I died for my country.’ He was a true American and I think he deserves the truth and I think everybody should know the truth. And if this was a bad thing they did with Fast and Furious it should be acknowledged so it never happens to anybody else’s son.”

Once again we see that, not only is this Administration corrupt and enslaved to ideology, but it is heartless and vile.

-William Jacobson believes Obama’s invoking of Executive Privilege was done for political purposes [tip of the fedora to Memeorandum]:

It’s the old one-two stall.

First Holder pretends he will cooperate, but doesn’t. Then he stalls with negotiations. Then he stalls some more by promising to cooperate again, but doesn’t. Then, when his back is up against the wall because a vote is scheduled to hold him in contempt, he runs to Obama for some legal protection, which will result in the matter being thrown into the courts for more delay.

As with most things damaging to Obama, all they care about is pushing the bad news off until after the election.

-Check out Doug Ross’s Top 10 Takeaways From The Obama-Holder Coverup [tip of the fedora to Memeorandum].

-Do also check out Pat Austin’s Fisking of Eric Holder’s official statement – it’s a damn good one [tip of the fedora to Memeorandum].

Michael Walsh comments:

But one thing is already clear: by asserting executive privilege, Obama has now forced F&F into the mainstream media, which has been doing its damnedest to block this story from the public. Those days are now over. Let the Nixon administration nostalgia begin; at least no one died in Watergate.

Tip of the fedora to WJJ Hoge for bringing Mr. Walsh’s comments to my attention. He comments:

…Perhaps the folks who have compared Barack Obama to Richard Nixon are right. I wonder; what will be this administration’s equivalent of the 18-minute gap?

Hold on tight: it’s going to be a bumpy ride.

In their lead editorial, the Editors of Investor’s Business Daily bring me back to the days of my youth with the language they use [tip of the fedora to Memeorandum]:

President Obama’s contempt for the rule of law hit a new low when, on the eve of a vote to hold Attorney General Eric Holder in contempt of Congress, he granted his AG’s 11th-hour request to hide sought-after documents on Operation Fast and Furious under the cover of executive privilege.

Or maybe it wasn’t the 11th hour at all, but just a long-planned final gambit in the cover-up of who made the decisions in a federally sponsored effort to provide Mexican drug cartels with sophisticated American firearms and who is ultimately responsible for the murder of Border Patrol agent Brian Terry with these weapons?

As Fox News anchor Brit Hume recently noted, speaking of Fast and Furious on the web-exclusive "Panel Plus" segment of "Fox News Sunday," "The stench of cover-up on this gun-running operation is very strong indeed."

I remember it well.

-We are on the verge of a Constitutional Crisis. Whether we have one depends on Obama and the Courts. Whether The Constitution shall triumph, as it should, depends on the resolve of the GOP Leadership in the Congress – God help us [as musician Charlie Daniel's put it: 'I hope the house don't wimp out and panty waist their
way out of a contempt citation on Holder A family lost a son and
somebody needs to pay.'] Therefore, it is imperative that we keep the pressure on the GOP, as we are the true and faithful guardians of The Constitution.

  1. M. Thompson permalink
    21 June 2012 @ 16:07 16:07

    Dick Nixon at least had somethings worthwhile done when he got caught. Getting South Vietnam to stand on its own, and understanding the requirement to negotiate as well as be armed.

  2. 21 June 2012 @ 21:35 21:35

    When President Obama was running against Bush Jr., he repeatedly promised to put an end to the practice of presidents arrogating unauthorized powers to themselves. It’s starting to look like this is one promise he may actually keep — by losing in the Supreme Court.

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