On Fast and Furious, Obama invokes 'executive privilege.' What's that?
Facing a contempt vote, Attorney General Eric Holder urged Obama to invoke 'executive privilege' to avoid turning over documents to Congress. To be valid, the claim must bear on a core power of the presidency.
Attorney General Eric holder speaks to reporters on June 19, following his meeting on Capitol Hill over a request from a congressional panel for more Justice Department documents regarding Operation Fast and Furious, a flawed gun-smuggling probe on the border.
Susan Walsh/AP
President Obama on Wednesday invoked executive privilege to withhold from a congressional committee some documents dealing with the failed gun enforcement operation “Fast and Furious."
Skip to next paragraph
Washington Editor
Peter Grier is The Christian Science Monitor's Washington editor. In this capacity, he helps direct coverage for the paper on most news events in the nation's capital.
Recent posts
-
05.17.13
Bob Woodward compares Benghazi with Watergate. Is he right? (+video) -
05.16.13
Why Benghazi talking points make US government seem like Dunder Mifflin (+video) -
05.16.13
Why furor over IRS tea-party scandal won't subside, despite ouster -
05.16.13
President Obama wants to 'go Bulworth'? What's that? (+video) -
05.15.13
Five ways the IRS scandal will change Washington (+video)
Subscribe Today to the Monitor
Can he do that? What’s executive privilege, exactly?
Well, executive privilege is not mentioned in the Constitution, per se. But since the founding of the republic, presidents have, on occasion, claimed a right to withhold information from Congress in the name of confidentiality. Their theory is that, without this right, it would be much more difficult for US chief executives to get the unvarnished advice they need to run the nation.
George Washington, for instance, in 1796 refused to let the House of Representatives see presidential papers dealing with negotiations over the controversial Jay Treaty with Great Britain. Some years later, Andrew Jackson said Congress couldn’t have documents detailing negotiations over the shape of Maine.
In the 1950s, President Eisenhower refused to allow his attorney general to testify before the McCarthy-era House Un-American Activities Committee. It was at this point that the concept got the name “executive privilege” and expanded to cover more than direct presidential papers.
Watergate gave executive privilege more legal heft. President Nixon asserted that he had broad powers to withhold from Congress executive branch documents, testimony from officials, and (most crucially) his White House tapes. Federal judges ruled that presidents did indeed have a presumption of executive privilege. But they also held that this power isn’t limitless. Executive privilege could be overruled if Congress showed an overriding public need for the information. In Nixon’s case, that’s what happened.
According to an authoritative Congressional Research Service history of executive privilege, at least three important elements must be present for a legally correct assertion of the power. First, the communication the president wishes to withhold must bear on a core power of the presidency, such as the right to grant pardons or conduct law enforcement. Second, the communication must have come from or to the president or a close White House adviser. Third, the communication can’t contain info so unique that investigators can’t figure it out by looking elsewhere.
These comments are not screened before publication. Constructive debate about the above story is welcome, but personal attacks are not. Please do not post comments that are commercial in nature or that violate any copyright[s]. Comments that we regard as obscene, defamatory, or intended to incite violence will be removed. If you find a comment offensive, you may flag it.