Rule of Law

Executive Privilege Kicks Off Regular Season

President Obama’s assertion of executive privilege today is a bit like the kickoff for the NFL regular season. It doesn’t end the Fast and Furious scandal; it just takes it to another level. Everything so far was the pre-season. Now people will start to pay attention.

(Read my review of the book Fast and Furious here for a great primer on the scandal.)

A president doesn’t assert executive privilege lightly. It is a relic from the powers of the king. Some things were not for parliament’s eyes, such as national security statecraft. This new phase of the Fast and Furious scandal begins with Americans who had paid no attention to the scandal hearing the news today and asking, “what are they trying to hide?”

The new phase might possibly include members of the old media asking why the Most Transparent Administration in History, isn’t. Or, it might see them going all out to defend their president.

Pay attention to how often they use the term “botched” gun running operation. This is government-generated language. If you read Pavlich’s book, you know there was nothing “botched” about Fast and Furious except the architecture. The government wants you to think the builders screwed up, not the anti-Second Amendment architects.

One thing executive privilege can’t accomplish for Eric Holder is hiding his Department’s wrongdoing. Richard Nixon got that scolding from the Supreme Court in 1974 in a case deliciously named United States v. Nixon.

In that case, the Supreme Court held,

neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.

Executive privilege cannot be used to cover up criminal wrongdoing, such as lying to Congress.

Note that in the Nixon case, the subpoenas came from a court, not from Congress. Congress arguably has more power than does a court to get to the bottom of matters involving governmental action.

This administration has not respected congressional oversight powers going back to the New Black Panther dismissal.

When a president acts this way, Congress wields an even mightier power than contempt. Congress can wield the power of the purse to counter today’s assertion by the White House. This power works best with a gang so addicted to government largess.

Congress, in particular the House, which was given the express power to originate spending bills, can simply refuse to fund certain offices and functions inside the Justice Department. Last year’s spending is already set, but not this year’s. Without the House approving spending at the DOJ, the DOJ can’t spend money.

The answer to this rebuff today is to defund a wide swath of offices inside DOJ, perhaps starting with the Office of Public Affairs and Office of Legislative Affairs. They started the lying to Congress and the American people about Fast and Furious. Now they should lose funding.

See also Andrew McCarthy: The Plot Thickens: Obama Asserts Executive Privilege to Block Fast & Furious Disclosures 

And Bryan Preston: Breaking: White House Asserts Executive Privilege Over DOJ Fast and Furious Documents (Updates)


Image courtesy of shutterstock / Brocreative