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What is executive privilege and what does it mean for F&F investigation?


As we've reported, President Obama is exercising his right to executive privilege to shield Attorney General Eric Holder from contempt charges and in following through with subpoena requests from the House Oversight Committee investigating the Justice Department's Fast & Furious Mexican gunwalking scandal. Here's a little background on the exercise of executive privilege and what this move potentially means for the continuing investigation...

In the U.S. government, executive privilege is a power claimed by the president and other members of the executive branch to resist certain subpoenas and interventions by the legislative and judicial branches. Although the concept of executive privilege is not explicitly mentioned in the U.S. Constitution, the Supreme Court has ruled that it can be exercised as another form of checks and balances in the federal government.

The Supreme Court ruling which confirmed the legitimacy of executive privilege came in United States v. Nixon, the 1974 case involving requests by Watergate special prosecutor Archibald Cox for taped conversations President Richard Nixon had with colleagues in the Oval Office. Nixon invoked executive privilege and refused to produce any records. The Supreme Court stated: "To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of non-military and non-diplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Article III." In Nixon's case, the Court ruled that Nixon's generalized need for confidentiality did not outweigh the public's larger interest in carrying out criminal prosecution.

In Obama's case, the job is now up to the prosecutor to make a "sufficient showing" that the "presidential material" in question is "essential to the justice of the case." Historically, presidents use executive privilege to sidestep open confrontations with Congress and the Courts by first asserting the privilege, then producing some of the documents requested on an "assertedly voluntary basis."

President Obama's predecessors have also exercised executive privilege. In 1998, President Bill Clinton became the first president since Nixon to assert executive privilege. Clinton lost, however, when a federal judge ruled that Clinton aides could be called to testify in the scandal surrounding White House intern Monica Lewinsky. Clinton later exercised a form of "negotiated executive privilege" when he agreed to testify before a grand jury called by independent counsel Kenneth Star. Clinton only appeared after negotiating the terms of his appearance.

Additionally, the George W. Bush administration invoked executive privilege on a number of occasions, including refusing the disclose details of Vice President Dick Cheney's meetings with energy executives, avoiding congressional subpoenas requesting documents from former presidential counsel Harriet Miers and former political director Sara Taylor, as well as in 2007 in rejecting a subpoena for senior advisor Karl Rove to testify in a probe over fired federal prosecutors.

Executive privilege is not a right to be lightly invoked, Supreme Court Justice Anthony Kennedy warned in 2004. "Once executive privilege is asserted, coequal branches of the Government are set on a collision course. The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives. This inquiry places courts in the awkward position of evaluating the Executive’s claims of confidentiality and autonomy, and pushes to the fore difficult questions of separation of powers and checks and balances. These 'occasion[s] for constitutional confrontation between the two branches' are likely to be avoided whenever possible."

So what does Obama's invocation of executive privilege mean for the Fast & Furious investigation moving forward?

It may have very serious implications for the Obama White House. Holder previously testified that President Obama was not directly involved in discussions about Fast & Furious, and President Obama told CNN Espanol in a recorded interview that he had no involvement and only found out about the scandal "on the news." However, today's assertion of executive privilege puts both claims in question.

In the meantime, a Republican aide to the House Oversight Committee says the fact that the White House has exerted executive privilege over the documents requested by the Committee will not affect the committee's consideration of the contempt citation for Attorney General Eric Holder today.

The White House is responding to press inquiries by pointing out that President Bush and Clinton both used used the privilege to protect "the same category of documents we're protecting today (i.e. after-the-fact internal Executive Branch materials responding to congressional and media inquiries - in this case from the Justice Department). In fact, dating back to President Reagan, Presidents have asserted executive privileged 24 times. President Obama has gone longer without asserting the privilege in a Congressional dispute than any President in the last three decades."

Stay tuned for more updates on this developing story...

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