Wednesday, June 20, 2012

Executive Privilege in F&F

On the day of the planned contempt hearings, Obama has declared the F&F documents to be 'Executive Privilege'.

So Obama is using his power to protect political appointees and hide the truth of F&F from the public.

We can all guess why.

As cocky as Holder was being, I KNEW he had some sort of trump card ready to play and this was it.

Update:  NRA is scoring the contempt vote. and Obama in 2007 criticizing 'executive privilege'.

Sen Grassley statement:
How can the President assert executive privilege if there was no White House involvement?  How can the President exert executive privilege over documents he's supposedly never seen?  Is something very big being hidden to go to this extreme? 

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SteveG said...

So now not only is it apparent Holder did know about Fast & Furious, the White House also knew.

Divemedic said...

I knew this would go nowhere.

Sigivald said...

Contra the Senator, a look at Exec. Privilege claims in the past, back to Eisenhower, does not reveal that it has to have involved the President himself.

That's why it's "Executive Privilege", not "Presidential Privilege".

AuricTech said...

Over at The Corner on National Review Online, Shannen W. Coffin posted a useful analysis of exactly what form of executive privilege Obama claimed. Here's an excerpt from the linked post:

Instead, the president invokes the second, more common, form of “executive privilege,” the so-called “deliberative process” privilege. This is a qualified privilege and protects pre-decisional communications within the executive branch. The theory behind the 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. Exposing those decisions to the scrutiny that public document dumps entails (think how much you’d enjoy your entire e-mail outbox on the front page of the New York Times) would necessarily chill internal deliberations and result in less effective government decision-making.

Here, the president (on the request and advice of the attorney general) concluded that the deliberative process privilege applied to purely internal Department of Justice deliberations regarding how the department should respond to both congressional inquiries and media inquiries. None of those deliberations were proximate to the White House or the president — but entailed only DOJ employees in the ordinary course of their jobs (and we don’t know how high up in DOJ those deliberations went, so we don’t know if the attorney general himself was involved).

Notwithstanding the lack of proximity to the president, there is a reasonable basis for invoking the privilege with respect to pre-decisional communications involving how the Justice Department should respond to congressional inquiries. There would be separation-of-powers problems if Congress could readily peel back the curtain from any executive-branch agency to see which agency employee said what to whom about any question that a congressional committee might pose to the agency.

It's not quite a "smoking gun" linking Our Nero Zero to F&F, but it does at least indicate a smoldering fuse that might ignite a metaphorical powder-keg that would leave him doing his best Wile E. Coyote impression.

Old NFO said...

Last time I looked DOJ was NOT executive branch, which means NO executive privilege, unless Teh One is now admitting defacto knowledge of F&F

Greg Tag said...


While I wish old NFO was right, my recollection of the "three branches" leads me to think DOJ is indeed "Executive Branch" as that Department is supposed to "execute " the laws under the direction of the Attorney General and ultimately, the President. This includes BATFE , FBI, US Marshals Service, the Federal Prosecutors, etc.

Actual Judges, including court Masters, magistrates and similar officers who preside over courts and legal tribunals, regardless of Department, are the only people who compose " the judiciary"- they have a different chain of command.

I think DOJ is indeed Executiv Branch, but I think the argument for Exec Priv in this case is very weak, and the claim must be substantiated to operate. I am hopeful that any reasonable judge will rule against the claim.

So....why did the President stick his neck out to save Holder's baon?

My guess is that there are documents that suggest that Holder and Obama discussed in at least a general way a plan to place illegally sourced American firearms, traceable to American FFL holders, into the hands of the Mexican drug cartels. The ultimate intent, I believe, was to have these arms be recovered in sufficient number to advance the Administrations meme that US guns were killing innocent Mexicans, and therefore massive new US gun controls were required.

The only thing that screwed up the " Fast and Furious" gun control plan was the fact that the Republicans captured the House in 2010. If Speaker Pelosi were still in charge do you think we would be hearing about any of this?

We all better vote for the best Congress possible in November.



Sigivald said...

What Mr. Tag said - Justice is most definitely part of the Executive Branch.

(After all, the Courts don't get to do law enforcement! It'd be a conflict of interest.

And the Legislature's job is likewise to make laws, not enforce them.

Law enforcement is squarely in the hands of the Executive.

Likewise, the fact that the Attorney General, its head, is appointed by the President confirms that; he only gets to appoint within his Branch, for obvious check-and-balance reasons.)