Free Markets, Free People

With the options available, why did Obama choose to invoke executive privilege?

That, at least to me, is the pregnant question.  He had a number of other options but  4 months from a critical election, chose the most controversial and potentially damaging one.


Let’s begin with a quote from  a former White House counsel from a Powerline post:

Even with his fawning press, [President Obama] will pay a price for this one. He knows this, meaning that the documents now to be withheld must be dynamite. They have to show either that Holder knew what was going on with Fast and Furious and approved it, or that he directly committed perjury in his Congressional testimony, or both. I just can’t see any other explanation for such a risky move.

Wasn’t the Washington Post just covering big time the 40th anniversary of Watergate? I wonder how much coverage this one will get.

That’s the result of the move – speculation that the documents being withheld point to perjury by Holder or the President, or both.

So let’s break this down a bit.  If it was all about Holder, why would the president risk this sort of a controversial move this close to an election.  It’s not like he’s never thrown anyone under the bus.  In fact James Carville is on record advising Obama to dump Holder.

Obama had the option, then, of letting Holder face contempt charges (not much happens as we’ve seen in the past, to those who are served with contempt of Congress charges) and drag out the document release until after the election.

With the election season gearing up, it is likely that while the controversy would have been an issue, it wouldn’t have been a major issue.   Now it certainly is.

He could have asked Holder to resign.  He could have then used the opportunity to appear as a statesman, a leader and bi-partisan all in one fell swoop.  Depending on how he handled that it could actually have been a positive for him heading into an election.  In the meantime, an acting AG could continue to delay on providing documents.

But he did neither of those things.  For some unknown reason (at least to this point) he chose to do the least likely and most politically damaging thing – invoke executive privilege.  As the lawyer quoted has said, those documents must be “dynamite” to have the president make this move.

And, unsaid by the lawyer is the speculation that the documents show the involvement of the White House to a degree that is damaging – apparently more damaging than the speculation and attention this move by the President has brought.

David Kopel at Volokh Conspiracy gives you a great history of the controversy.  As for the documents Kopel notes:

According to Attorney General Holder, the DOJ has 140,000 documents related to Fast & Furious. Fewer than 8,000 have been provided to Congress pursuant to subpoenas. The contempt vote has been narrowed to 1,300 documents. In refusing to comply with the House subpoenas, the DOJ has refused to create a privilege log–which would identify withheld documents, and the legal reason for their being withheld.

Matthew Boyle at the DC caller points out that Holder has retracted two previous statements he made to Congress where he gave them inaccurate information in an attempt to blame previous AGs or administrations.  It seems that’s a standard operating procedure with all parts of this administration.  So Holder is left holding the bag all by himself on this one, or so it seemed, at least, to the point that executive privilege was invoked.

That brings us to these 4 point by Todd Gaziano at the Heritage Foundation about the use of executive privilege:

First, the Supreme Court in United States v. Nixon (1974) held that executive privilege cannot be invoked at all if the purpose is to shield wrongdoing. The courts held that Nixon’s purported invocation of executive privilege was illegitimate, in part, for that reason. There is reason to suspect that this might be the case in the Fast and Furious cover-up and stonewalling effort. Congress needs to get to the bottom of that question to prevent an illegal invocation of executive privilege and further abuses of power. That will require an index of the withheld documents and an explanation of why each of them is covered by executive privilege—and more.

Second, even the “deliberative process” species of executive privilege, which is reasonably broad, does not shield the ultimate decisions from congressional inquiry. Congress is entitled to at least some documents and other information that indicate who the ultimate decision maker was for this disastrous program and why these decisions were made. That information is among the most important documents that are being withheld.

Third, the Supreme Court in the Nixon case also held that even a proper invocation must yield to other branches’ need for information in some cases. So even a proper invocation of executive privilege regarding particular documents is not final.

And lastly, the President is required when invoking executive privilege to try to accommodate the other branches’ legitimate information needs in some other way. For example, it does not harm executive power for the President to selectively waive executive privilege in most instances, even if it hurts him politically by exposing a terrible policy failure or wrongdoing among his staff. The history of executive–congressional relations is filled with accommodations and waivers of privilege. In contrast to voluntary waivers of privilege, Watergate demonstrates that wrongful invocations of privilege can seriously damage the office of the presidency when Congress and the courts impose new constraints on the President’s discretion or power (some rightful and some not).

The key point, of course, is executive privilege cannot be used to “shield wrongdoing”.  While it is speculative, it appears highly likely – given the other options available – that executive privilege is being used for precisely that reason in this case.

Additionally, given the choices available to the President, it is not at all out of bounds to speculate that the most transparent administration in history is trying desperately to hide something even more terrible than the political fallout from this choice.

The White House cites internal discussions and ongoing investigations are the reason for its denial and claims the investigations would be jeopardized with the release of the documents.  But, as Gaziano points out, accommodations can be made in that regard.  The total number of documents requested is 1,300.  The White House is simply refusing to cooperate or accommodate.


We’re still left with that question.  

And the answer, given the  actions to date, lead to some logical speculation – what is contained in those documents is much more damaging politically than the damage done by the decision.  Additionally, Obama can’t afford to let Holder go because if he does there’s the potential that Holder will then spill the beans.

Oh, and finally, this move has suddenly brought Fast and Furious to page one and the top of the newscast like nothing else could.  The majority of the country, which was mostly ignorant of this scandal are now in the loop.

As the cited former White House counsel said, “the documents now to be withheld must be dynamite.”  In fact, they must be so explosive that the White House is desperate enough to try to weather this self-inflicted political storm in lieu of exposing them.

That says a lot.


Twitter: @McQandO

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57 Responses to With the options available, why did Obama choose to invoke executive privilege?

  • Or it could be that Baracky knows the palace guard media will cover for him just enough, which would allow him to use this as a talking point in his “GOP is the party of obstructionism and partisan games” shiny object strategy.

    • That is what I am thinking.  Why would the MSM cover this outside of labeling it a GOP partisan witch hunt?

    • Exactly, they expect it to be a big deal news wise, and they expect to be able to say “the Republicans aren’t interested in fixing the economy, they’re interested trying to use this non-issue for political gain when they SHOULD be working on jobs jobs jobs!”
      They believe this will take the focus off Obama’s economy, and they’ll be able to play the race card on a daily basis – after all, there was no crime, and this is only being done because the President is black, and the AG is black.   There are a whole lot of “positives” for them here, and they’ll (continue to) stone wall this puppy, with the help of the media, until after November and milk it for all it’s worth in distraction, pandering and victimization.

      • Yeah, I don’t think “there was no crime” will fly … not with a dead Border Patrol agent (and former Marine) as a result of F&F.

        • To say nothing of all those scores of dead brown people.

          • You two are talking about reality, they have no intention of dealing with reality here.   Sure, you can prove Terry was killed, but that’s not a crime to them.  They’ll just say bad fortune as part of a poorly planned operation which “was the fault of other than Holder, and he put a stop to it once he discovered it, and Obama is just protecting him from a Republican Witch Hunt”.  Good lord, their story line has been the same since this came out over a year ago – Holder lies to Congress and then retracts it months, days later and says “it was a mistake and it wasn’t intentionally misleading”.  Don’t you wish YOU could get that kind of slack for perjury?
            They are dealing in the Obama Dream universe, they will play this out in their fantasy with the able support of the media.  The DOJ is certainly NOT going to do anything about this, so, exactly, who is?
            Other than Congress beginning contempt proceedings, and I’m not convinced they’ll get a full House vote to find for Contempt, even with only a simple majority requirement.  Aside from that guys, NOTHING has changed, there’s no new evidence, there’s no surprise here.  All the facts there are already are.  So what do you think has changed other than Congress finally losing it’s patience just when Obama needs to play the “Victim of Republican Obstruction and racisim” card?
            They intend to divert, deny and delay, using the very guilt the Republicans are trying to prove as a perverse shield to claim they are not guilty and that this is all due to Obama and Holder’s pigmentation and party.  This is brazen in your face corrupt Chicago politics on a national scale.   Seriously, they aren’t just re-acting here – the executive privilege claim was rolled out as planned, it wasn’t a response to Issa’s actions on Tuesday night.
            They’ve had months and months to plot how they’d deal with this.
            What we need to happen is for someone in DOJ to take a bullet and reveal all this crap before they assemble the documentation and it ends up in the trunk of a car in a junkyard, or accidentally shredded and lost due to equipment failures on numerous backup devices and hard drives.

          • Well, they were on the other side of the border, so they don’t count. Except under a Republican administration, of course.

          • Dead Mexicans are only people when voting for Democrats.

  • As noted yesterday, these documents WILL now have to be produced to the courts.
    That links to just ONE of several stories that show Holder was apparently lying under oath through much of his testimony.  There are other clips that show the same to be true of Obama, though not under oath.
    And, as McQ notes, newsrooms at all the Mushroom Media are now echoing with “Fast and Say-wha…???”
    Compared to this, Watergate was a harmless prank.

    • MSNBC treated it’s 6 viewers to a rant by Madcow about a Mike Vanderboegh (Sipsey Street Irregulars) conspiracy theory last night.
      The usual “shinny object” non sequitur approach, since the contempt charge is in regard to documents not conspiracy.

      • I saw that.  No mention of Brian Terry or ATF whistleblower agent Dodson.  It’s all just the fevered imagination of a “crazy” militia guy.  She also repeated the lie that the open carry rally on Patriot’s Day a few years back was timed to coincide with the OKC bombing.
        Even Jon Stewart was more factual and showed (mock) shame at the program.  He even did a joke about Obama criticizing Russia for sending weapons to bad guys in a foreign country, contrasting that to sending guns into Mexico.
        Rachel Maddow is a clown who tries to distract from the facts by adopting a smug, mocking affect, cherry picking a few irrelevant details, and leaving out any salient facts which would contradict her schtick.
        I at least got a laugh when she said, “Welcome to those Fox viewers tuning in.”  While I don’t watch FNC in the way she suggests (I watch multiple channels and adjust for the various biases of each), I thought it was funny that she realized that some of us would be tuning in out of morbid curiosity to watch her squirm.  Not so much entertaining as nauseating when I realize there are people out there in the MSNBC bubble who know nothing of the gunwalking scandal, who get their information from bozos like this woman.

    • You’re assuming the documents will survive to go to court, I don’t think they will.  The Clinton’s had no qualms about making documents disappear for years, or all together.  I doubt these guys are any different.

      • Maybe they’ll stuff ’em in their socks.

        • Nope.  Too late.  We KNOW they exist.  If they “disappear”, that is ANOTHER serious crime, and it won’t get passed over.

          • See though dude, here’s the thing, won’t get passed over by who?
            I’m pretty convinced we’re securely a Banana Republic right now.

        • Accidentally, of course, and only because there are duplicates in the archives and they didn’t think destroying these would be against the law, and it was all the fault of an unnamed low level person, and it was really done 2 years ago anyway and that’s why they didn’t give the information to Congress and they didn’t intentionally mislead the committee and BESIDES this really is about race you know.

          • Isn’t it about time for Tad (the poor man’s Erb) to show up, drop a few non sequiturs, litter the place with untold straw men and red herrings and bomb us with talking points related to who knows what?

          • QandO’s own Washing Machine Charlie.
            He probably thinks Executive Privilege is a rich guy dating service and is trying to figure out how he can link it to Mitt Romney.

          • How could you be a poorer man than Erp…???

    According to these fine, fine public servants, Obama was on the cutting edge of the whole guns-drugs issue in 2009, and they specifically reference gun-walking if my ears still work.
    Of course, they could have been lying through their teeth, and Pres. Composite was totally oblivious…on a golf course…in Iceland.

  • While many folks believe that “Fast and Furious” was an attempt to create an atmosphere to severely restrict 2nd amendment rights, there is a alternate theory that there is an immunity deal between U.S. and the Sinaloa cartel, which does lots of business in Chicago.
    The “deal” was something on the lines that the Sinaloa cartel would take out the other cartels with US help (sounds a lot like the plot line of “A Clear and Present Danger“). At least one Sinaloa cartel member has claimed to have such immunity in a case out of Chicago.
    If this is the case, and that is a big if, then there would be plenty of reasons to not inform the Mexicans authorities and revelation would be a huge embarrassment to the Obama Administration.

    • Either Clancy’s book or Sons of Anarchy.

    • The other option is “get both”. Maybe it was a deal with a cartel that also pushed gun control. Win-win until it came to light.

    • Maybe, it is both theories …
      Documents obtained by CBS News show that the Bureau of Alcohol Tobacco, Firearms and Explosives (ATF) discussed using their covert operation “Fast and Furious” to argue for controversial new rules about gun sales.

      In Fast and Furious, ATF secretly encouraged gun dealers to sell to suspected traffickers for Mexican drug cartels to go after the “big fish.” But ATF whistleblowers told CBS News and Congress it was a dangerous practice called “gunwalking,” and it put thousands of weapons on the street. Many were used in violent crimes in Mexico. Two were found at the murder scene of a U.S. Border Patrol agent.

      ATF officials didn’t intend to publicly disclose their own role in letting Mexican cartels obtain the weapons, but emails show they discussed using the sales, including sales encouraged by ATF, to justify a new gun regulation called “Demand Letter 3”. That would require some U.S. gun shops to report the sale of multiple rifles or “long guns.” Demand Letter 3 was so named because it would be the third ATF program demanding gun dealers report tracing information.

    • Has anyone looked into the potential connection between Sinaloa and radical muslims? Check it out, if Bammi is as dirty as he seems to be, a rag tag fifth column of terrorists could be hiding among the cartels. There has been some fleeting indication of this in the past.

  • If the documents “merely” show Obama committing perjury, Clinton survived that and there isn’t much doubt Obama would too.  The crimes he committed have to be something juicier.  Conspiracy and improper use of government resources for political means seems to be about the credible minimum

    • Obama wasn’t under oath when he made the claims of denial, so it would only be an embarrassment at best.

    • What is different about this is the gun running and and the resulting dead people. The left could make the argument that Clinton was only lying about sex (in order to deny justice to an American citizen, but whatever). Obama is lying about gun smuggling that resulted in the deaths of two federal agents and scores of Mexicans.

  • Holder retracting his statements about Bush’s AG is sure going to put a damper on the dems talking points isn’t it.
    Operation Wide Receiver DID begin under Bush 43 in 2006, and ENDED ~14 months before President Obama took office in  October 2007.  The ATF had deemed the operation ineffective, as they couldn’t come up with an effective way of tracking the weapons.

    Someone in the current administration (or perhaps a career official) got wind of it and restarted it (via presidential decree) in 2009, almost 2 years later.  In English, this program had been inactive for 2 years. They didn’t just restart it, they doubled down.  They even used recovery act monies to fund it, if that isn’t enough, lots of jobs created there.

    • OWR actually tried to track the guns and actually coordinated with the Mexicans. OF&F did neither of these things, it simply waved the guns “by-by”

    • The Branch Davidian screwup started under Bush 41.  And, Bush 41 threw a temper tantrum and quit the NRA over the “jack booted thugs” letter.  Republicans support gun rights when they win them votes, but they also support law enforcement in nearly all cases.
      Under a Republican or Democrat, the ATF has always been chock full of corrupt scumbags.  Remember the “Good Ol’ Boys Roundup”, which was whites only, at which they handed out “n* hunting licenses”?  They behave as though they’re above the law (the history of a lack of accountability from higher ups encourages this attitude).  They look for excuses to bust people for technical violations (even when they lack mens rea, like David Olofson).  This suggests a deeply ingrained, institutional hostility to gun rights, particularly for “fringe” groups.  Whatever the politics of the DOJ, the White House, or others under different administrations, the ATF is fertile ground for any alleged conspiracy to inflate numbers (to lend urgency to their role, to justify their existence and their budget) and to blacken the eye of gun dealers.  The statements of whistleblowers and the subsequent facts do support this theory, though I think it’s a stretch for the Obama administration to claim that it’s Bush’s fault.

      • “Remember the “Good Ol’ Boys Roundup”, …”
        You must be as old as the hills.  Maybe you have one of those “codebooks” that will help us all understand this “codewords” that are thrown about like “cats to a cat juggler.”

  • Again, seriously – consider that it is not beyond the realm of possibility that the current sitting President of the United States was born in Kenya.   His background is so riddled with inconsistencies and lies I used to scoff at that idea, but… not so much any more.
    When you consider the scope of Fast and Furious in that light, and you realize they may have already pulled off one of the biggest crimes of all time, the death of a Border Patrol agent is supposed to make them feel remorse or start acting in a legal fashion?

    • If you want to speculate on conspiracies, I’ve got one for you:
      Someone like Rahm Emanuel or Lanny Davis concocted the rumors of Obama being born in another country, with the intent to trick Republicans and others into wasting their time and making themselves look foolish.
      I have no evidence of such, but I’d bet money on that theory before I’d risk anything on the Kenya birth scenario.
      Perhaps some Karl Rove type is conjuring up some similar false flag rumor about Romney.
      Just a thought.

      • I tended to doubt it until recently, until the book biography thing – that was too small a detail for even Rove to have thought up that far back.  Now admittedly big ears probably did that to appear “exotic”, and quite probably did it to carry on with the lie he told to get into college as a foreign student (you know, we can ask less of foreigners and extend them privileges, because they dress funny and are foreign and that means they need aid, and understanding and allows us to overlook average grades) but it also could in theory have been done merely because for once it was a convenient truth.

        • Sorry if I didn’t make myself clear.  I don’t think Rove invented the theory.  My suggestion was that a Democrat strategist could have decided to plant the rumor hoping to distract.  I made it up entirely as a thought experiment, inspired by the “thriller” novels and movies in which such far-flung plots are rather ubiquitous.
          My point is that opposition to Obama ought to target what is in plain sight, what can clearly be demonstrated.  Things like economic performance, legislation and executive orders, foreign policy blunders, scandals with actual dead bodies, and the like are in the news.  Digging through his past to find skeletons is not necessary when you can discredit the man by his actions as president.
          And, if you decide to spend your time looking for skeletons, at least consider the possible end games to such an endeavor.  Witness the accomplishments of those who pursued rumors about Clinton (Whitewater, Waco, Vince Foster, Juanita Broaddrick, Mena drug smuggling, etc.).  Even if a number of those were based upon damning facts, look at what happened.  Nothing happened.  His impeachment was about perjury during his presidency.  But someone like James Carville or Paul Begala can still toss those other conspiracy theories around as examples of “right wing lunacy” to ridicule Republicans today–and he can get traction.
          For me, that’s an object lesson in the power of political machines, the complicity of a sympathetic media, the fear that the general populace tends to have of being associated with nutty conspiracy theories, and the lack of rational skepticism among many who despise a given politician so much they are willing to jump on any and every rumor, repeating it regardless of the consequences to their credibility.  An intelligent, honest person seeking the truth can get caught up in a storm created by all of these forces and be drowned out.

          • I’m with ya man, I would prefer they get him for things they can prove, where there are actual, credible, witnesses and documentation.   I’m just saying I don’t think there’s a bottom to how low this White House will go. And I don’t see who’s going to stop them right now.
            it sure as hell isn’t going to be the media, or the justice department, and I’ll hold my breath on the House passing a contempt of congress vote.

      • This is a good point.

        When Michelle was in Kenya she made some remark about it being “her husband’s country”. I think that was intentional. Playing up the birthers works to Obama’s advantage.  

  • “We absolutely agree with the need to find out the truth about why Fast & Furious happened, why the tactic, again, was employed in the previous administration, in different operations and was stopped by this Attorney General, why it came about. And that’s why the Attorney General referred it to Inspector General. That is why we have provided Congress every document that pertains to the operation itself that is at issue here when you talk about the family that you referred to,” White House press secretary Jay Carney said at his briefing today.

    “The Terry family,” Carney said after ABC’s Jake Tapper reminded him of the name.”
    And there’s Carney LYING “why the tactic, again, was employed in the previous administration,”  in the face of known facts and following the bankrupt year old story line – Holder discovered this, and stopped it, he’s not in contempt, he’s a hero!

    • Oh, I forgot….BLAME BUSH!

      • The two operations were COMPLETELY different, and separated by MONTHS…if not years.
        The Bush-era operation was STOPPED when it became apparent that tracking the guns was not working.  According to Michelle Malkin (who DOES her homework) all the guns were accounted for, as well.
        In F&F, there was NO attempt to really track the guns.

        • “In F&F, there was NO attempt to really track the guns.”
          Precisely, it was a feature of F&F, and Carney, the LIAR, cannot possibly be unaware of that.
          Divert, Deny, Delay – oh, and Deceive.

          • Actually, in OF&F, I think 2 (two) of the 2,000 guns had trackers in them. They were installed by field agents, who bought them at Radio Shack. It wasn’t part of the OF&F plan, it was something the field agents decided to do on their own.

  • Can’t they go after the ATF and other Federal agencies involved who might have documentation? CBS article said they had documents…if you can’t go in the front door why not the back?
    Some agency must have incriminating information Congress could use. The CBS article said “So it turns out ATF not only allowed it – they videotaped it.”  They interviewed federal agent(s). There must be other sources?

    • We already know…and I mean KNOW…that Holder was getting detailed memos on this many months before the date he testified learning of it UNDER OATH.
      That was the work of the CBS reporter, and it proves (IMNHO) that Holder LIED…which certainly is colorable perjury.

      • No no, it was merely incorrect information accidentally given.  Ah, if only I’d know that lie on lying might have worked as a youth, I could be President today.

  • Perhaps BO can’t cut Holder loose because Holder knows where too many bodies are buried.  If that’s the case, his choices were executive privilege or a Ron Brown airplane ride.  Maybe Holder wouldn’t get on the plane.

    • Maybe Holder is Bammis boss, in the New Black Panther regime. I will bet that Holder pulled rank ( and strings ) on Bammi.

  • Al “Tawana Brawley” Sharpton calls the contempt vote a “stop and frisk” of Holder.

  • The Senior palace guard lies speaks. In other surprising news dog bites man.

  • I’m looking forward to someone fisking the Carey presser today.
    McQ…I’m looking at you…

  • The assertion of executive privilege will be the tipping point in the GunWalkergate saga.

  •   I thought Obama was already on record saying he knew nothing about any of this. If that is the case, then on what basis do you invoke executive privilege over information you did not have? Put another way, how can you claim executive privilege for something you knew nothing about? This is a question only an intellect like Biden or Pelosi can answer <sarc!>