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

Just minutes before Congress began preparing a contempt vote against Eric Holder, Obama raised the stakes in the long-running conflict over the botched ‘Fast and Furious’ gun-walking affair by claiming executive privilege to keep tens of thousands of e-mails secret.

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Investigators have tied several high-ranking Justice officials to wiretap applications for the Fast and Furious operation, suggesting that officials may know more than they’ve let on about what happened. Moreover, in the past 18 months, Holder has had to backtrack statements about the DOJ’s role at several points and has had to retract one letter that categorically denied that the ATF, a Justice bureau, ever let guns “willfully” walk into Mexico. Those admissions of error only piqued Republicans on the House Oversight Committee, who met with Holder privately and unsuccessfully on Wednesday to discuss a way to head off a contempt vote.

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Holder had proferred Republicans a quid pro quo, reported Congressman Issa, the Oversight Committee chair: In exchange for ending the investigation, Holder would not release the documents, but would brief investigators on specific documents they were interested in. Opening Wednesday’s hearing, Issa said, “We need the Department of Justice to cooperate, but so far cooperation is not forthcoming.”

Democrats said Holder, who has testified over a dozen times on the Fast and Furious scandal and has apologized to Mr. Terry’s family, has acted in “good faith”; while the Oversight Committee is holding Holder “to an impossible standard,” said Rep. Elijah Cummings of Maryland, the committee’s ranking Democrat.

The executive order left the committee hearing in disarray, as Republicans pondered Wednesday how to proceed. If the committee approves a contempt order, it would go to the House for ratification. If approved by the chamber, the contempt order would spark a criminal investigation.

Executive privilege is usually reserved for matters of national security, under which the government’s efforts at controlling drug-running border gangs could fall. It also is used for White House matters and correspondence.

The White House says it applied the same standards as the Bush and Clinton White Houses did in claiming the executive privilege (Bush claimed it six times; Clinton. 14). In this case, a White House spokesman explained, the White House is concerned about releasing privileged communication between the Department of Justice and White House political officials that took place long after the fact, when the administration was trying to weigh its response to the scandal.

Republicans, however, had another take-away, saying that the president has now inserted himself into an effort where critics claim the administration is trying to protect its political appointees, including Holder, while possibly covering up not just a matter of national and international concern but a program that may have involved US officials breaking the law.

“This is now the president saying, ‘You can’t have these documents,’ to Congress, and that takes the dispute to a different level and puts the president right in the middle of it,” Weekly Standard editor Bill Kristol told Fox News.

While the legal and political impacts of the president’s decision are far from certain, the move, for the moment at least, seems to bolster what had become a flagging Congressional investigation that even Republicans feared would appear purely political and could damage the Republicans’ focus on the economy ahead of the election.

“Now the White House is saying that something is privileged that they previously denied existed, all of which means that this House investigation is arguably, though not obviously, legitimate,” says Michael Munger, a political scientist at Duke University, in Durham, N.C. “The Republicans have been impatient in a public sense and highly critical in a political sense, and I think that they’ve just made the president mad.”

But the confrontation has now moved to a new, somewhat unprecedented level, says Mr. Munger, for a presidency that has previously pushed the bounds of presidential power. “It is absolutely a constitutional showdown: an assertion of privilege to be able to ignore a constitutional order by the Congress,” he says.

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