The PJ Tatler

What to Make of Obama's Executive Privilege Move?

Up to today, the Fast and Furious scandal has been almost exclusively fought out in alternative media and Fox. With the exception of CBS’s Sharyl Attkisson, who has done stellar work on the scandal, the networks and big media have largely left the story alone. That has left Fast and Furious in its own universe, largely outside the presidential campaign and off the evening newscasts.

Obama’s assertion of executive privilege changes that dramatically. It has already forced MSNBC to start covering it as a news story. That’s a signal that NBC will cover the fight and that ABC will follow suit on evening newscasts. The New York Times and Washington Post will be forced to cover it as well. They will spin it, of course, playing up the partisan angles and playing down the deaths of two US agents and hundreds of Mexicans, but they have to cover it.

Mitt Romney will now have to comment on it, at least to note that the president who promised transparency has now abandoned that promise entirely. He may also note other parts of the scandal, and it will be easy for super PACs to turn this into a campaign issue. Obama and his allied super PACs may be forced to defend what the president has done. Fast and Furious has now been turned up to 11 as a media and campaign story.

One would think that this would be the last thing the president who is already facing a tough re-election battle would want. He is underwater on job approval, the economy is threatening to shed jobs — not just slow growth, but actually shed jobs — and now this. What could the president possibly be thinking?

Asserting executive privilege is fairly rare among presidents: President George W. Bush asserted it six times in eight years, and President Clinton asserted it 14 times in eight years. Obama’s first assertion of executive privilege is today’s, but it concerns what has up to now been a department-level scandal. Asserting executive privilege in this case tears down the wall between the White House and Fast and Furious for the first time.

The president is doing any and perhaps all of the following things. He may be protecting both Eric Holder and David Axelrod. Holder has given conflicting testimony on Fast and Furious, testimony that has conflicted with the president’s own statements and has forced retractions. Holder and Axelrod, according to Holder, have held meetings. Axelrod denies. It is very unusual for an attorney general to hold political meetings with presidential political advisers. Attorney general is a constitutional office, and is supposed to represent the United States, not necessarily the president’s particular political preferences. Did the Holder-Axelrod meetings really occur, as Holder testified that they did? If they did, what was discussed in those meetings, and what led up to them, and what actions resulted from them? The subpoenaed documents may shed some light on this, so the president is forced to hide them via executive privilege, at a minimum to conceal proof that either Axelrod or Holder have lied.

The president may be protecting himself. Executive privilege is a presidential power limited to his own communications. The Department of Justice delivered a letter to the House regarding Fast and Furious in February 2011. That letter was full of inaccuracies and was retracted in full after nine months. What did the president know about the creation of that letter, which is the prime subject of the subpoena that has led to the contempt of Congress action and assertion of executive privilege? When did he know it? Why was the letter so full of falsehoods? Why did the author of that letter retire just a week prior to the contempt vote?

The president may be seeking to expand executive privilege itself. United States vs Nixon recognized but also limited the scope of executive privilege for presidents, down to the president’s personal communications and communications of a national security nature. Neither applied to Fast and Furious, but the assertion of executive privilege implies that either one or both does apply. President Obama came into office promising unprecedented transparency, but asserting executive privilege breaks that promise. Breaking a public promise must be worth today’s actions to the president. He may want to expand executive privilege to use the power more extensively if he wins a second term.

Whatever the president’s intentions, he has now made Fast and Furious a mainstream story. He and his allies will use it to play up the partisan divide and fire up his base, but that may become more difficult as the voting public learns more about a scandal that most are hearing about for the first time. Unlike most political scandals, Fast and Furious involves the blood of two US agents, Brian Terry and Jaime Zapata, and hundreds of innocent Mexican citizens. That blood now leaves a public trail straight to the president himself.

Obanixon photo credit to rdbrewer at Ace of Spades. (@rdbrewer4)