Bob Beauprez

For a year and a half Barack Obama successfully deflected suspicion that neither he nor the White House staff was directly involved in the ever growing Fast & Furious gun walking scandal.  That changed yesterday when the President voluntarily inserted himself into the equation by withholding documents from Congress with an assertion of Executive Privilege.

Executive Privilege is rarely used, and only in very specific circumstances relating to communication specific to the Office of the President.  The following is a summary of the "concluding observations" on page 35 of the 2008 Congressional Research Service Document, Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments prepared as a reference document for guidance to Members of Congress:

  1. The protected communication must relate to a "quintessential and nondelegable presidential power." Those powers would include Commander-in-Chief, treaty negotiations, presidential pardons, official reception of ambassadors and other foreign government personnel, etc.  "It would arguably not include decision making with respect to laws that vest policy making and administrative implementation authority in the heads of department and agencies or which allow presidential delegations of authority." 
  2. The information covered by the Executive Privilege assertion must be "authored or solicited and received by a close White House advisor (or the President).  The judicial test is that an advisor must be in 'operational proximity' with the President.  This effectively means that the scope of the presidential communications privilege extends only to the administrative boundaries of the Executive Office of the President and the White House."
  3. The presidential communications privilege remains a qualified privilege that may be overcome by a showing that the information sought 'likely contains important evidence' and the unavailability of the information elsewhere by an appropriate investigating authority." 

Per this criteria, Executive Privilege should not be applicable unless the President, or one or more of his closest internal staff, was personally connected to the Fast & Furious operation, which is the opposite of what Obama has claimed - at least until now. 

Thus, Obama's decision invites a whole new set of questions, most notably, "What did the President himself know, and when did he know it?"  Until yesterday, that question wasn't even on the table.  Now it is, and by the President's own doing. 

Bob Beauprez

Bob Beauprez is a former member of congress, dairy farmer, community banker, real estate developer, and now a buffalo rancher in Colorado

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