June 23, 2012
By Todd F. Gaziano
Nixon’s press secretary tried to dismiss the Watergate break-in as nothing more than “a third-rate burglary.” It was always more than that, but the high-level cover up—with illegitimate claims of executive privilege—was far worse.
Watergate demonstrates how bogus claims of executive privilege can jeopardize a President’s tenure and forever taint his legacy. Time will tell how yesterday’s last-minute invocation of executive privilege to shield hundreds of documents from public scrutiny and keep Attorney General Eric Holder from being held in contempt of Congress will affect President Obama’s place in history.
The House Committee on Oversight and Government Reform is investigating the administration’s disastrous “Fast and Furious” program. This botched operation allowed thousands of guns to flow across the Mexican border, resulting in the death of a U.S. border patrol agent and—according to the Mexican attorney general—the slaying of at least 200 Mexican citizens.
Until yesterday, Attorney General Holder’s refusal to turn over thousands of documents subpoenaed by the committee stood as the most glaring violation of executive power. There was no assertion of executive privilege. Holder simply refused to release the documents—a blatant act of stonewalling.
But yesterday, the committee was prepared to hold Holder in contempt of Congress. To forestall the formal vote on that motion, the attorney general belatedly asked President Obama to shield at least 1,300 pages of documents from Congress by invoking executive privilege. The President did so. And that’s a problem. How large of one is yet to be determined.
The Supreme Court has made clear that executive privilege is not absolute. And there are several reasons to suspect many of the subpoenaed documents are not legitimately subject to executive privilege.
First, the Supreme Court in United States v. Nixon (1974) held that executive privilege cannot be invoked at all if the purpose is to shield wrongdoing. This might be the case in the Fast and Furious cover-up and stonewalling effort. Congress needs to get to the bottom of that question rather than take Holder’s word for it.
Second, even the “deliberative process” species of executive privilege does not shield the ultimate decisions from congressional inquiry. Congress is entitled to at least some documents and other information on those ultimate decisions. That information is contained in some of the documents being withheld, as well as others not covered by yesterday’s claim of executive privilege.
Third, the Supreme Court in the Nixon case also held that even a proper invocation must yield to other branches’ need for information in some cases. So even a proper invocation of executive privilege regarding particular documents is not final.
Lastly, when invoking executive privilege the President is required to try to accommodate the other branches’ legitimate information needs in some other way. In most instances it does not harm executive power for the President to selectively waive executive privilege, even if it exposes a terrible policy failure or wrongdoing among his staff.
The history of executive–congressional relations is filled with accommodations and waivers of privilege. In contrast, Watergate demonstrates that wrongful invocations of privilege can seriously damage the office of the presidency, as it prompts Congress and the courts to impose new constraints on executive power.
Yet with yesterday’s assertion of executive privilege, the President is now more clearly responsible for any continued stonewalling regarding the “Fast and Furious” scandal. The American people will now know who doesn’t want the truth to come to light, and ultimately, whether there was a legitimate reason for hiding behind claims of privilege.
First appeared on the BostonHerald.com
Todd F. Gaziano
Director, Center for Legal & Judicial Studies
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