In any case, justice requires answers about Fast and Furious.
The investigation into Operation Fast and Furious by the House Oversight and Government Reform Committee has resulted in President Obama’s invoking executive privilege for the first time. Attorney General Eric Holder has been waltzing the committee around, producing only selected documents about the botched Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) gun-running operation, and (you guessed it) blaming the Bush administration for having knowledge of similar activities. This charge was so clearly erroneous that Holder later withdrew it. The showdown between Holder and the committee culminated on Wednesday in a vote to hold Holder in contempt. Shortly before the vote, Obama claimed executive privilege in order to prevent the production of the subpoenaed documents.
Issues as to the proper use of presidential executive privilege have arisen many times, since almost every modern president has used it at one time or another. Interestingly, no mention of executive privilege is found in the Constitution, and neither is any of the right of Congress to investigate. But the Supreme Court has recognized both as implied powers, inherent in the powers that are given to both branches by the Constitution.
With regard to executive privilege, the courts have recognized a qualified privilege to protect communications between the president and executive officials, as well as deliberations that go into advice given to the president. George W. Bush successfully claimed the privilege with regard to matters pertaining to presidential adviser Karl Rove, White House counsel Harriet Miers, and Vice President Dick Cheney. Presidents have, on occasion, cast an even wider net over executive-branch action, but I am not aware of any court case that has upheld the right to treat communications between people who work in a department, such as Justice, as privileged. In fact, recently the D.C. Court of Appeals held just the opposite.
Nevertheless, I believe these intra-department communications are precisely the kind of documents that Obama is claiming are privileged. If in fact the documents, or some of them, were sent to the president or his White House aides, then the president’s claim would be stronger. But it would also mean he or his staff was much more involved in Fast and Furious than anyone knew.
In that case, the president would take a public-relations hit (assuming anyone in the mainstream media would report it), but he could then raise another point: Courts are more likely to set aside executive privilege if it’s being used to shield information in a criminal investigation.