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Scholars doubt White House privilege claim

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President Obama could be on shaky legal ground with his assertion of executive privilege in a congressional investigation that has been going on for a year, according to scholars who study the limits of presidential power.

Louis Fisher, a former specialist on the separation of powers at the nonpartisan Congressional Research Service, said he found the administration's arguments "extremely unpersuasive."

Mr. Fisher noted that Attorney General Eric H. Holder Jr., in a letter to the president, cited the need to protect the Justice Department's "deliberative process" in responding to the congressional inquiry into a botched gun-running operation.

"Yet he admits throughout his letter to Obama that the department has regularly provided the House committee with documents" involved in drafting a particular letter to the committee on Feb. 4, 2011, Mr. Fisher said.

"He states that the department 'has already shared with the Committee over 1,300 pages of documents concerning the drafting of the Feb. 4 letter,' " Mr. Fisher said. "In short, Holder was willing to release documents about that deliberative process."

Mr. Fisher, who has testified before Congress and written a book about executive privilege, also said Mr. Holder repeatedly cites "the fundamentally false notion that when Congress wants information from the executive branch, it must be in furtherance of a 'legitimate legislative responsibility.' "

"The constitutional right of Congress to pursue oversight is as legitimate as its legislative function," Mr. Fisher said. "Oversight is also essential in investigating corruption and illegal activity in the executive branch."

'Not to be lightly invoked

Documents requested by House Oversight and Government Reform Chairman Darrell E. Issa, California Republican, in the "Fast and Furious" gun-running operation "should not qualify for executive privilege," said Maureen Martin, senior fellow for legal affairs at the Heartland Institute, a conservative think-tank based in Chicago.

"The Supreme Court has held that executive privilege is 'an extraordinary assertion of power not to be lightly invoked,'" she said in a statement. "It is intended to safeguard deliberations in the executive branch over what course of action to take. That was decided long ago as far as Fast and Furious is concerned."

But Steven D. Schwinn, an associate professor of law at the John Marshall Law School in Chicago, said he believes Mr. Obama's claim of privilege is valid.

"The committee appears to seek material relating to purely internal executive deliberations about how to respond to committee and press inquiries, and not to the substance of the program and other matters," Mr. Schwinn said. "Largely for the reasons that the attorney general gives in his letter to the president, I think he's right that this material is covered by executive privilege as against the committee's request for it."

The White House defended its assertion of executive privilege Wednesday, saying Mr. Obama has used the tactic only once, far less than his predecessors.

But scholars say what matters in court is the legal validity of presidential claims of privilege, not their frequency. The move also was awkward for a president who claims to be running for re-election as having the most transparent administration in history, and it opened up a new front in Mr. Obama's ongoing feud with congressional Republicans.

Previous examples

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.

"Until now, everyone believed that the decisions regarding 'Fast and Furious' were confined to the Department of Justice," said Brendan Buck, a spokesman for Speaker John A. Boehner, Ohio Republican.

"The White House decision to invoke executive privilege implies that White House officials were either involved in the 'Fast and Furious' operation or the cover-up that followed. The Administration has always insisted that wasn't the case. Were they lying, or are they now bending the law to hide the truth?" Mr. Buck said.

It's also an uncomfortable position for a president who hails his administration's transparency, for example, in matters such as releasing White House visitor logs. As a candidate, Mr. Obama pledged to enforce "a new standard of openness."

"We're constantly trying to open up the process," Mr. Obama said in January 2010.

When he was campaigning for the presidency in 2007, Mr. Obama promised to reserve the use of executive privilege for cases of national security or "traditionally sensitive matters."

In 2004, Mr. Fisher noted, the George W. Bush administration initially refused to allow National Security Adviser Condoleezza Rice to testify in public before the 9/11 Commission. White House Counsel Alberto Gonzales argued that the separation of powers were at stake, but he reversed himself and allowed Miss Rice to testify.

During Mr. Bush's presidency, the Republican tried to greatly expand presidential powers, both to prevent disclosure of internal White House communications and to disregard portions of laws with which he didn't agree.

Mr. Clinton claimed executive privilege to try to shield his wife, first lady Hillary Rodham Clinton, from questions about the Whitewater real estate scandal and the Monica Lewinsky affair. Courts rejected his claims in both cases.

A report in 2008 by CRS said the administrations of Presidents George H.W. Bush and Mr. Clinton took the position that executive privilege extended to recommendations made to senior officials and communications of senior policymakers throughout the executive branch, including within the White House or between the White House and any federal department or agency.

Researcher John Sopko contributed to this report.

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