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Obama raises legal eyebrows with executive privilege claim


**FILE** President Obama speaks April 30, 2012, in Washington. (Associated Press)

President Obama could be on shaky legal ground with his assertion of executive privilege in a congressional investigation that has been going on for a year, according to scholars who study the limits of presidential power.

Louis Fisher, a former specialist on the separation of powers at the nonpartisan Congressional Research Service, said he found the administration’s arguments “extremely unpersuasive.”

Mr. Fisher noted that Attorney General Eric H. Holder Jr., in a letter to the president, cited the need to protect the Justice Department’s “deliberative process” in responding to the congressional inquiry into a botched gun-running operation.

“Yet he admits throughout his letter to Obama that the department has regularly provided the House committee with documents” involved in drafting a particular letter to the committee on Feb. 4, 2011, Mr. Fisher said.

“He states that the department ‘has already shared with the committee over 1,300 pages of documents concerning the drafting of the Feb. 4 letter,’” Mr. Fisher said. “In short, Holder was willing to release documents about that deliberative process.”

Mr. Fisher, who has testified before Congress and written a book about executive privilege, also said Mr. Holder repeatedly cites “the fundamentally false notion that when Congress wants information from the executive branch, it must be in furtherance of a ‘legitimate legislative responsibility.’”

“The constitutional right of Congress to pursue oversight is as legitimate as its legislative function,” Mr. Fisher said. “Oversight is also essential in investigating corruption and illegal activity in the executive branch.”

‘Not to be lightly invoked’

Documents requested by House Oversight and Government Reform Committee Chairman Darrell E. Issa, California Republican, in the Fast and Furious gunrunning operation “should not qualify for executive privilege,” said Maureen Martin, senior fellow for legal affairs at the Heartland Institute, a conservative think tank based in Chicago.

“The Supreme Court has held that executive privilege is ‘an extraordinary assertion of power not to be lightly invoked,’” she said in a statement. “It is intended to safeguard deliberations in the executive branch over what course of action to take. That was decided long ago as far as Fast and Furious is concerned.”

But Steven D. Schwinn, an associate professor of law at the John Marshall Law School in Chicago, said he thinks Mr. Obama’s claim of privilege is valid.

“The committee appears to seek material relating to purely internal executive deliberations about how to respond to committee and press inquiries, and not to the substance of the program and other matters,” Mr. Schwinn said. “Largely for the reasons that the attorney general gives in his letter to the president, I think he’s right that this material is covered by executive privilege as against the committee’s request for it.”

The White House defended its assertion of executive privilege Wednesday, saying Mr. Obama has used the tactic only once, far less often than his predecessors.

But scholars say that what matters in court is the legal validity of presidential claims of privilege, not their frequency. The move also was awkward for a president who claims to be running for re-election as having the most transparent administration in history, and it opened a new front in Mr. Obama’s ongoing feud with congressional Republicans.

Previous examples

A court decision during the administration of President Clinton is considered one of the most definitive on the subject of presidential privilege. The case involved Agriculture Secretary Mike Espy, who came under investigation by an independent counsel in 1994 over accusations of improper gifts. (He resigned and was indicted, but was acquitted.)

A grand jury subpoenaed a report that the White House Counsel’s Office had prepared for Mr. Clinton on the Espy case, and Mr. Clinton cited executive privilege in refusing to turn over some of the documents. A federal appeals court decision in 1997 made clear that such claims are limited to White House officials, according to the Congressional Research Service.

“The court’s opinion carefully distinguishes between the ‘presidential communications privilege’ and the ‘deliberative process privilege,’” the CRS report stated. “Both, the court observed, are executive privileges designed to protect the confidentiality of executive branch decision-making. But the deliberative-process privilege, which applies to executive branch officials generally, is a common-law privilege that requires a lower threshold of need to be overcome, and ‘disappears altogether when there is any reason to believe government misconduct has occurred.’”

Mr. Holder and a top deputy defended the claim by saying the documents are not relevant to the original Fast and Furious operation, and that turning over such documents would have a chilling effect on the ability of a president’s top aides to give him advice confidentially.

A White House spokesman said Mr. Obama “has gone longer without asserting the privilege in a congressional dispute” than any other president in the past three decades. The White House said President George W. Bush asserted executive privilege six times, while Mr. Clinton did so 14 times.

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About the Author

Dave Boyer

Dave Boyer is a White House correspondent for The Washington Times. A native of Allentown, Pa., Boyer worked for the Philadelphia Inquirer from 2002 to 2011 and also has covered Congress for the Times. He is a graduate of Penn State University. Boyer can be reached at

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