On Monday night, the Department of Justice (DOJ) filed a brief asking a federal court to dismiss the lawsuit the House of Representatives filed challenging the President’s invocation of executive privilege in the Operation Fast and Furious case.
The House suit seeks to force the Administration to release documents that it is still withholding from Congress, an issue which was discussed in an earlier Heritage Legal Memorandum.
In the midst of the Watergate crisis, President Nixon told the nation, “If the President does it, that means it’s not illegal.” In a similar fashion, DOJ’s brief argues, in essence, that if the President invokes executive privilege, that means it was a valid assertion and that no court of law should ever be permitted to review the matter, period.
DOJ states repeatedly in the brief that it has made “substantial” efforts to accommodate Congress—providing roughly 7,000 pages of documents, some heavily redacted, in comparison to the roughly 100,000 pages of documents that were provided to DOJ’s inspector general, who also testified that he did not receive all the documents he wanted to review from the Administration—and that “Congress’s legitimate informational interests have been largely satisfied” (as if it were within DOJ’s purview to make such a determination, rather than Congress’s, and that “largely” satisfying Congress’s legitimate needs is enough).
DOJ argues that Congress’s only recourse to resolve this dispute is to use “political tools,” such as the appropriations process or making “its case to the people through the electoral process.”
DOJ contends, “The combination of robust alternative remedies and the historical absence of involvement by the Judiciary have provided incentives for both Branches to work in earnest through the process of negotiation, accommodation, and ultimate resolution,” but that this “process would unravel if courts were available to dictate what information may be demanded or withheld. Judicial intervention would move the Branches toward litigation, not accommodation, and would dramatically alter the separation of powers.”
These are breathtaking arguments that, if adopted, would permit the President to stonewall virtually any congressional inquiry by ignoring subpoenas or invoking executive privilege in an improper fashion to, say, prevent the disclosure of embarrassing information or criminal conduct.
Were a court to adopt DOJ’s argument, which seems highly unlikely given Supreme Court and other precedent, then a President could simply ignore a congressional subpoena or improperly invoke executive privilege, and Congress would be forced to either drop the matter or escalate the conflict by instituting impeachment proceedings, withholding funding of some valuable government service—something significant enough to the get the President’s and the public’s attention—or trying to persuade the public to vote the President out of office (even though the President might be withholding the very information that would enable the public to make an informed decision).
In some situations, those might be superior tools, but the courts should not be closed to Congress in every instance just because it has those other tools. In a statement, House Oversight Committee chairman Darrell Issa (R–CA) said that DOJ’s argument “should trouble Americans who believe the President and the Federal government are not above the law.”
The DOJ brief states that, were a court to exercise jurisdiction here, “then countless other suits are sure to follow, given the volume of document requests issued by dozens of Senate and House Committees that perform oversight functions.”
However, the government acknowledges that in the entire history of our country, only three cases challenging executive privilege have ever been filed and that never before has an Attorney General been held in contempt.
It seems implausible that this trickle of cases is likely to turn into the veritable flood that DOJ envisions. The court is likely to, and should, reject DOJ’s startling argument.