Obama’s Nixonian Contempt for Transparency

Brian Darling / June 20, 2012

President Obama channeled his inner Richard Nixon with his exercise of executive privilege to shield Attorney General Eric Holder from transparency. Whether the assertion is valid is a question to be resolved between Congress and the President, yet this authority is something that can be waived by the President if he desires transparency in communications about the Fast and Furious gun-running scandal.

As Todd Gaziano points out in a post titled “Fast And Furious: Executive Privilege Is Illegitimate to Shield Wrongdoing”:

As Holder surely knew all these past months, there is no privilege that exists between Congress and the executive branch to withhold documents except the constitutional executive privilege, which is based on the separation of powers. For example, the attorney-client privilege does not exist between Congress and the executive branch because they have the same client—the American people. Holder also knew that executive privilege does not attach to documents automatically. It can be asserted only by the President or with his direct approval. It can be waived; indeed it should be waived in many or most instances when Congress needs the information for its legislative functions. So the slated House committee vote to hold Holder in contempt today was unfortunately necessary to get him to at least reconsider his lawless course of stonewalling.

Fox Insider posted a copy of a letter from Attorney General Holder to President Obama formally requesting executive privilege.

I am writing to request that you assert executive privilege with respect to confidential Department of Justice (“Department”) documents that are responsive to the subpoena issued by the Committee on Oversight and Government Reform of the United States House of Representatives (“Committee”) on October 25, 2011. The subpoena relates to the Committee’s investigation into Operation Fast and Furious, a law enforcement operation conducted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) and the United States Attorney’s Office for the District of Arizona to stem the illegal flow of firearms from the United States to drug cartels in Mexico (“Fast and Furious”). The Committee has scheduled a meeting for June 20, 2012, to vote on a resolution holding me in contempt of Congress for failing to comply with the subpoena.

One would think that this letter would be part of an internal confidential communication between President Obama and his Attorney General, yet this letter has made it into the public domain. If the White House or the Justice Department leaked this letter, it may be an attempt by the White House to shift blame for the exercise of executive privilege to Holder, even though Holder does not have the power to assert that privilege. It will be interesting to see the detail of the letter from President Obama to Congress asserting the privilege and to assess whether there is a detailed legal foundation for the privilege. Furthermore, the letter may end up being merely a short assertion of the privilege, further adding to the controversy.

If you doubt the parallels between Nixon and Obama, you need look no further than the letter from Holder to Obama. The Justice Department’s letter cited U.S. v Richard Nixon, a case that limited the scope of executive confidential communications, as authority for this use of executive privilege.

Executive privilege is “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.” United States v. Nixon, 418 U.S. 683,708 (1974). It is “a necessary corollary of the executive function vested in the President by Article II of the Constitution.” Congressional Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 154 (1989) (“Congressional Requests Opinion”) (opinion of Assistant Attorney General William P. Barr); see U.S. Const. art. II, Sec. 1, cl. 1 (“The executive Power shall be vested in a President of the United States of America.”); U.S. Const. art. II, Sec. 3 (The President shall “take Care that the Laws be faithfully executed ….”). Indeed, executive privilege “has been asserted by numerous Presidents from the earliest days of our Nation, and it was explicitly recognized by the Supreme Court in United States v. Nixon.” Congressional Requests Opinion, 13 Op. O.L.C. at 154.

The Nixon case, in part, held that there is not an absolute, unqualified privilege. The big question today will be: Is this proper exercise of executive privilege consistent with Nixon?

This is a difficult question to answer, because we don’t know the details of the information being withheld from Congress and the nature of the executive branch communications being shielded from public scrutiny.

One question that the American people, Congress, and the President will have to answer is whether this is a proper assertion of the privilege. Another question is whether the Justice Department’s letter merely serves as political cover for the Obama Administration to shift the legal reasoning for the presidential assertion of privilege to someone other than the President.