President Obama has invoked “executive privilege” to head off a contempt of Congress citation against Eric Holder for failing to produce documents relating to operation “Fast and Furious,” the bizarre DOJ initiative to send thousands of firearms to Mexican drug cartels to see what they would do with them (kill people, as it happens).
Over on the Member Feed, ConservativeWanderer helpfully reminds us of the NYT editorial blasting Bush for invoking the privilege to block congressional subpoenas over the firing of 8 federal prosecutors. But it wasn’t just the Times, then-Senator Barack Obama also attacked Bush for “try [ing] to hide behind executive privilege every time there’s something a little shaky that’s taking place.”
Don’t hold your breath for a NYT editorial against the Obama/Holder privilege, but a court challenge may be in order. Under existing precedent (including the famous US v. Nixon), executive privilege is not impregnable. Heritage’s Todd Gaziano has a good post highlighting the relevant law, which I summarize:
First, executive privilege cannot be invoked at all if the purpose is to shield wrongdoing – that’s what did Nixon in. Second, Congress is entitled to at least some documents and other information that indicate who the ultimate decision maker was for this disastrous program and why these decisions were made. Third, even a proper invocation of the privilege must yield to other branches’ need for information in some cases. And lastly, the President is required when invoking executive privilege to try to accommodate the other branches’ legitimate information needs in some other way.
If Democrats contend that executive privilege must yield to Congress’s desire to investigate the firing of 8 prosecutors, how can they argue that Congress does not have an even stronger need to know the facts about Fast and Furious? Who knows, but they obviously will make that argument. House Republicans have to challenge the administration on this — it’s the only hope of getting Fast and Furious the infamy it deserves.