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.

Susan Walsh/AP
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.

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."

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.

Since 1980 US presidents have claimed executive privilege 25 times in various circumstances. Ronald Reagan did it three times. Bill Clinton? Fourteen. George W. Bush asserted it six times.

In the 2009-10 “Fast and Furious” case, Arizona-based agents of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives were trying to build a case against smugglers suspected of supplying violent Mexican drug cartels with weapons. The US agents allowed these suspects to purchase upwards of 2,000 guns without intervention. Some of these weapons were later implicated in a 2010 shootout that killed a federal border agent.

In February 2011, the Justice Department sent Congress a letter stating that top officials had only recently learned about the “Fast and Furious” operation. Justice officials later withdrew that letter as inaccurate. GOP members of the House Oversight and Government Reform Committee now want documents pertaining to the reasons for that withdrawal. It’s this request that the administration is attempting to block with its executive privilege claim.

In a letter to Mr. Obama asking that he assert executive privilege in this case, Attorney General Eric Holder wrote that releasing the papers in question would “inhibit the candor of executive branch deliberations in the future and significantly impair the ability of the executive branch to respond independently and effectively to congressional oversight."

Republicans denounced the action. House Speaker John Boehner questioned whether the move means that the White House itself, not just the Department of Justice, was involved in “Fast and Furious” decisions.

“The administration has always insisted that wasn’t the case. Were they lying, or are they now bending the law to hide the truth?” said Mr. Boehner’s press secretary Brendan Buck.

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