Scholars doubt White House privilege claim

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A court decision from the administration of former President Bill Clinton is considered one of the most definitive on the subject of presidential privilege. The case involved then-Agriculture Secretary Mike Espy, who came under investigation by an independent counsel in 1994 over accusations of improper gifts. (He resigned and was indicted, but was acquitted.)

A grand jury subpoenaed a report that the White House counsel’s office had prepared for Mr. Clinton on the Espy case, and Mr. Clinton cited executive privilege in refusing to turn over some of the documents. A federal appeals court decision in 1997 made clear that such claims are limited to White House officials, according to the CRS.

“The court’s opinion carefully distinguishes between the ‘presidential communications privilege’ and the ‘deliberative process privilege,’” the CRS report stated. “Both, the court observed, are executive privileges designed to protect the confidentiality of executive branch decisionmaking. But the deliberative process privilege, that applies to executive branch officials generally, is a common law privilege which requires a lower threshold of need to be overcome, and ‘disappears altogether when there is any reason to believe government misconduct has occurred.’”

Mr. Holder and a top deputy defended the claim by saying the documents are not relevant to the original Fast and Furious operation, and that turning over such documents would have a chilling effect on the ability of a president’s top aides to give him advice confidentially.

A White House spokesman said Mr. Obama “has gone longer without asserting the privilege in a congressional dispute” than any other president in the past three decades. The White House said President George W. Bush asserted executive privilege six times, while President Bill Clinton did so 14 times.

Mr. Bush asserted executive privilege to block release of documents and testimony under oath by top White House aides, including White House counsel Harriet Miers, concerning the administration’s firing of nine federal prosecutors in 2006. Those aides later gave testimony in private, under a deal arranged by the Obama administration.

Obama’s past words

But the use of that privilege is one that Mr. Obama tried to exploit as a candidate for president. In 2007, then-Sen. Obama criticized Mr. Bush for trying to “hide” behind executive privilege in the case of the fired U.S. attorneys.

“There’s been a tendency, on the part of this administration, to try to hide behind executive privilege every time there’s something a little shaky that’s taking place,” Mr. Obama told CNN’s Larry King. “I think the administration would be best served by coming clean on this. There doesn’t seem to be any national security issues involved.”

He added, “There doesn’t seem to be any justification for not offfering up some clear plausible rationale for why these U.S. attorneys were targeted when by all assessments they were doing an outstanding job. I think the American people deserve to know what was going on there.”

A White House aide said the executive privilege claim was in response to a congressional investigation that is “all politics.”

Rep. Elijah E. Cummings of Maryland, the committee’s ranking Democrat said claims of privilege should be used sparingly. But he said in this case, the administration was “forced into this position by the committee’s unreasonable insistence on pressing forward with contempt despite the attorney general’s good faith offer.”

Presidents typically cite executive privilege to protect aides within the White House under the reasoning that a president’s closest advisers should be able to give their advice freely in private.

White House involved?

But Mr. Obama’s assertion of executive privilege in the Justice Department’s “Fast and Furious” operation has critics questioning whether the president himself became involved in the internal discussions about the administration’s response to the probe.

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