(GunReports.com) — Todd Gaziano, Director of the Center for Legal & Judicial Studies at The Heritage Foundation and a former lawyer in the DOJ’s Office of Legal Counsel, recently called into question President Obama’s using executive privilege to shield Fast & Furious documents from scrutiny:
As a strong defender of executive power (when properly exercised) and executive privilege (when properly invoked), I am concerned when claims of executive power or privilege are abused for any reason—especially if they are invoked to shield potential wrongdoing. In addition to shielding the wrongdoing, it jeopardizes the very executive power that the President is entrusted with when Congress and the courts react—as they did in the post-Watergate era—to the abuse of power.
The House Committee on Oversight and Government Reform is rightfully investigating the Fast and Furious debacle, in which the Administration allowed thousands of guns to flow across the Mexican border, resulting in the death of one U.S. border patrol agent and at least 200 Mexican citizens—according to the Mexican attorney general. The most glaring violation of executive power in that investigation prior to today was the refusal of the Department of Justice (DOJ) to turn over 1,300 pages of documents subpoenaed by the committee without even an assertion of executive privilege. Attorney General Eric Holder simply refused on his own initiative in a blatant act of stonewalling.
As Holder surely knew all these past months, there is no privilege that exists between Congress and the executive branch to withhold documents except the constitutional executive privilege, which is based on the separation of powers. For example, the attorney-client privilege does not exist between Congress and the executive branch because they have the same client—the American people. Holder also knew that executive privilege does not attach to documents automatically. It can be asserted only by the President or with his direct approval. It can be waived; indeed it should be waived in many or most instances when Congress needs the information for its legislative functions. So the slated House committee vote to hold Holder in contempt today was unfortunately necessary to get him to at least reconsider his lawless course of stonewalling.
In a desperate attempt to prevent the contempt vote in the last few hours, Holder asked President Obama to invoke executive privilege to shield these 1,300 pages of documents from Congress, and the President apparently agreed to do so. Yet that is not the end of the story. Even if properly involved, the Supreme Court has made clear that executive privilege is not absolute. DOJ must provide an explanation why all those documents fit one of the recognized categories of executive privilege. It is questionable whether they all are legitimately subject to executive privilege, for several reasons.
Read it here.
