Taken directly from the White House website, “President Obama has committed to making his administration the most open and transparent in history” (my emphasis).
Many of you may have heard that Obama today asserted “executive privilege” to refuse releasing documents to Congress regarding the Department of Justice’s prior knowledge of Fast and Furious, an operation that included 1,500+ guns being supplied and subsequently lost by the ATF, eventually resulting in the death of a Border Patrol agent.
Now the first response most have to criticism of the Obama administration in this matter is the fact that Bush used executive privilege 6 times, for various reasons. The Supreme Court has also consistently upheld the constitutionality of executive privilege (even in Nixon’s case), although they have also overruled some assertions in the name of a greater public interest in knowledge than confidentiality. That being said, resolving any case involving executive privilege in court can take years. For some, the entire idea of an executive privilege may seem like a shady policy, a sneaky way for presidents to hide things. It can be, but we’re also going to take a quick look at why it’s important and what the consequences will be in this case…
Executive privilege has a history dating back to George Washington. Many presidents have been involved in cases involving privilege, and it’s not an uncommon thing for presidents to use. So why is it important that the executive branch keep some documents secret? Besides the issue of national security, the Supreme Court also cites the fact that “[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process”. This is the foundation that many of the following uses of privilege rest on. If presidential advisors know that their statements could be released to the public at any time, the resulting lack of confidence will impede presidential decisions. It’s a valid point. Unfortunately, the courts usually end up dealing with these clashes between executive privilege and congressional oversight.
In my opinion on this case, the issue at present is more political than judicial. Will the Supreme Court overrule this use of privilege? I highly doubt it. With the Supreme Court just finishing up with some big rulings on PPACA and the Arizona immigration law in the next few weeks, this will be the last thing on our minds concerning the justice system.
The issue is more political than judicial for a few reasons.
1) Scenario #1 – The White House knew about Fast and Furious all along. This justifies executive privilege (because the documents concern advice to the White House), but instead shows the public that the White House (and Attorney General Holder) lied all along about being involved. Assuming this scenario is true, the use of privilege will translate into some political criticism and loss of votes over government honesty, not judicial action (at least not before the election).
2) Scenario #2 – The White House is using executive privilege to cover up for Holder, even though the documents are completely unrelated to the White House. Again, getting to the bottom of this would require judicial action, and I don’t think that’s a likely possibility now (again, not until after the election). Assuming this scenario is true, the Obama administration should be criticized for its claims of “open government” while openly misusing executive privilege.
Either way, the immediate consequences are not so much judicial as they are political. That means the burden falls on us, as American citizens. Rather than trying to figure out if this is constitutional (something we won’t know until we know the White House’s involvement) we should be asking ourselves: “Is this something important enough that is in the public interest to know?” The power to show consequences of government opacity is in the hands of voters. Will we use that power?
Again, I doubt it. To be honest, most people don’t care that much about something like this. The back-and-forth subpoenas, disclosure agreements, and legal arguments usually cause headaches. In addition, this is the first time Obama has used executive privilege (a fact you will be sure to hear many times on the news).
Regardless, after the Supreme Court announces the healthcare decision, this will fade away for a while. If Obama does win again, the resolution of the F&F scandal could come back to bite him, but he will have already won anyway. I think the purpose of using executive privilege is simply to delay the investigation enough to shove it back under the rug for some time. When thinking about Obama’s motivation for using executive privilege in this case, some words from him a few days ago come to mind (although this time he was speaking about an executive order): “This is a temporary stopgap measure that lets us focus our resources wisely.”
I think the same words apply here.