The Contempt in the Executive Dodge

Bob Beauprez
Posted: Jun 22, 2012 12:01 AM

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. 

Since early 2011, Attorney General Eric Holder has rebuffed numerous attempts by Congress to get answers about the operation, including the central one: "What individual(s) authorized putting 2000 weapons in the hands of the Mexican drug cartels?"  Some of those guns were used to assassinate ATF agent Brian Terry in December 2010 inside the U.S. border in Arizona. 

Moments before the House Government Oversight Committee convened on June 20 to consider holding the Attorney General in contempt of Congress, Obama invoked Executive Privilege in a high stakes effort to block the Committee's subpoena request of the DOJ for documentation about Fast & Furious.    

On Sunday, June 17 Veteran Washington political analyst Brit Hume said, "The stench of cover-up on this gun-running operation is very strong indeed." And, that was before the President jumped head-first into the Fast & Furious quicksand with his assertion of Executive Privilege.   

Holder told Rep. Darrell Issa, Chairman of the House Oversight Committee, that it would be "embarrassing" if the documents requested by Congress would be made public.   With the assertion of Executive Privilege to stonewall Congress, the question became all the more important and obvious, "What is in those documents, what is there about the truth that would be so 'embarrassing' – maybe even to the President himself?"

The House has scheduled a vote for next week on the Holder contempt question.  This all could have been avoided if Holder had answered straight forward questions and provided the truth eighteen months ago.  But, a little stonewalling, followed by less than truthful answers, quickly becomes a full blown cover-up.  And, cover-ups can have very serious consequences – see Richard Nixon. 

Instead of dodging a bullet by asserting Executive Privilege, Barack Obama might have stepped right in front of it.