Obama invokes executive privilege to protect Eric Holder: Can he do that?

The standoff between President Obama and the Republican-led House of Representatives moved into uncharted territory Wednesday when Mr. Obama claimed executive privilege for the first time in his presidency to block a House investigation into a botched federal gun-running sting called “Fast and Furious.”

Under Fast and Furious, some 2,000 weapons were allowed by the United States to be “walked” by straw buyers into the hands of Mexican drug cartels. Whether the operation was the result of rogue ATF agents or approved by the executive branch is what an 18-month investigation spearheaded by Rep. Darrel Issa (R) of California claims it has so far been unable to verify.

A separate inspector general investigation ordered by the president has yet to yield a summary of how the operation came to be approved and put into effect.

Painted by Democrats as a political witch hunt, the 18-month probe, Republicans say, was undertaken primarily on behalf of slain border patrol agent Brian Terry, who was killed in December 2010 by drug runners who were carrying two Fast and Furious rifles. At stake are some 80,000 documents that the Department of Justice does not want to release, saying they include privileged information, a decision that sparked Wednesday’s contempt hearing by the House Oversight Committee and the president’s decision to freeze the documents.

Sharing the “Fast and Furious” documents with Congress “would raise substantial separation of powers concerns and potentially create an imbalance in the relationship” between Congress and the White House, Attorney General Eric Holder wrote to Obama on Tuesday. Letting the committee have the documents “would inhibit candor of such Executive Branch deliberations in the future and significantly impair the Executive Branch’s ability to respond independently and effectively to congressional oversight."

The president’s move raises questions about whether the documents are actually covered by executive privilege, and also whether it is an admission by the White House that it knew more about the operation than it has let on.

“All presidents tend to claim executive privilege from time to time, in large part because, in order to function effectively, the executive branch needs to be able to keep deliberations confidential and people have to be able to give unbiased advice and be candid without worrying that what they said is going to end up in the papers,” says Kermit Roosevelt, a constitutional law professor at the University of Pennsylvania. “On the other hand, there’s always concern that the executive is asserting privilege in order to conceal information that’s not confidential, but embarrasing, so it’s a hard balancing act.”

While the constitutional game of chicken between the White House and House Republicans carries heavy political risks for both sides, the president’s order has at the very least raised the long-running and complex Fast and Furious debate to a new level only months before a presidential election, putting Mr. Holder in the greatest bind of his political career. If approved by the House, an eventual contempt charge could mean a criminal investigation that could land Department of Justice officials in jail if it turns out they lied or tried to cover up their knowledge of the operation.

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