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The fast, the furious, and the executive privilege

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  1. Freedom of Information
AP Photo/Stephan Savoia Attorney General Eric Holder speaks in Boston on June 26 while a vote loomed to hold him…

AP Photo/Stephan Savoia

Attorney General Eric Holder speaks in Boston on June 26 while a vote loomed to hold him in contempt of Congress for withholding records of Operation Fast and Furious.

President Barack Obama’s recent assertion of executive privilege in the investigation into Operation Fast and Furious highlights the difficulty journalists can face when invocation of the centuries-old doctrine prevents the disclosure of information necessary to effectively gather and report news about important government action.

“Any obstacle to obtaining official government records creates enormous resource and time problems for journalists,” said Dennis Wagner, border reporter and investigative journalist for The (Phoenix) Arizona Republic and USA TODAY. “If you don’t have the official record, your job is to obtain the information by other means — research, whistleblowers and other sources. Those efforts delay and in some cases stymie the public’s right to know what the U.S. government is doing.”

Executive privilege, a legal doctrine recognized more than 200 years ago, allows presidents to defy requests by members of the legislative and judicial branches for information the administration deems sensitive. The privilege ensures that the president receives candid advice from aides without fear of intrusion by Congress or the courts.

Although the privilege is not explicitly mentioned in the Constitution, the U.S. Supreme Court first found in the 1974 Watergate case, United States v. Nixon, a constitutional basis for the doctrine in “the supremacy of each branch within its own assigned area of constitutional duties” and in the separation of powers principle. A similar provision exists in the federal Freedom of Information Act Exemption 5 and permits an executive agency to withhold from disclosure certain documents on which executive officials rely.

The privilege was first used by George Washington, who said that the president is justified in withholding information only when doing so is in the service of the public interest and not an attempt to protect the political interests of the president and his administration. However, presidents have not always followed that standard, and their assertion of a broader privilege has impeded the free flow of information about matters of significant interest and concern to the public.

When a president invokes executive privilege, “it may be among the most difficult walls to penetrate because the number of potential leakers with access to White House documents is limited and closely monitored,” said Wagner, who has covered the Fast and Furious investigation. “In some instances, I’ve simply been prevented from reporting on an important issue because the blockade worked.”

Operation Fast and Furious

Beginning in October 2009, the U.S. Department of Justice, led by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, undertook an operation that allegedly allowed about 2,000 weapons to flow from legal U.S. gun dealers to Mexican drug cartels as part of a long-term gun trafficking investigation. In December 2010, two of these weapons were found at a site near the U.S.-Mexico border where U.S. Border Patrol Agent Brian Terry was fatally shot.

As part of an investigation into the operation, the House of Representatives Committee on Oversight and Government Reform subpoenaed in March 2011 all ATF and Justice Department communications and documents referring or related to Operation Fast and Furious. The Justice Department released about 7,600 pages of documents but did not turn over records relating to the agency’s response to the fallout of the operation. The committee’s dissatisfaction with the response prompted it to schedule a vote to hold Attorney General Eric Holder in contempt of Congress. On the morning of the June vote, Obama invoked executive privilege over the disputed documents, marking the first such assertion of his presidency.

Minutes after the contempt vote, Holder characterized it as “the regrettable culmination of what became a misguided and politically motivated investigation during an election year.” The next day, the Justice Department announced that it would not prosecute Holder for failing to fully comply with the committee’s subpoena.

The House Committee on Oversight and Government Reform responded with a lawsuit against Holder, asking a federal court to compel him to produce the documents. Last month, the Justice Department moved to dismiss the suit, arguing that courts historically have declined to resolve disputes between Congress and the president, instead leaving the branches to negotiate and reach an accommodation.

Obama claims that the documents and email messages at issue detail internal deliberations after news of the operation became public. While the Justice Department possessed the information, President Obama never actually saw it. However, that fact alone does not necessarily defeat his privilege claim because its successful invocation need not literally involve the president, said Stephen Vladeck, American University law professor.

“The privilege attaches to the office, not the person,” Vladeck said. “It is about internal confidential communications within the executive branch. That’s why it’s called executive privilege and not presidential privilege.”

As an example, Vladeck cites Cheney v. U.S. District Court, a 2004 U.S. Supreme Court case in which Vice President Dick Cheney challenged a lower court’s ruling ordering Cheney to disclose certain records that would reveal how his National Energy Policy Development Group came up with its recommendations. The Supreme Court held that Cheney had the option — though he was not required — to invoke executive privilege even though President George W. Bush had not seen the documents in dispute.

“There was no allegation that President Bush was directly involved in those materials, but it was still internal executive branch communications,” Vladeck said. “That the president does not see the documents is not dispositive of an executive privilege claim.”

Expanding the privilege

Although use of the executive privilege by a vice president seemingly comports with its original intent, open government advocates said they are concerned by recent presidential expansions of the scope of the privilege.

“Executive privilege is to the president and his immediate circle,” said Chris Farrell, director of research and investigation for Judicial Watch. “It’s not to every person in the executive that could possibly be carrying out an order of the president.”

Judicial Watch has filed a lawsuit seeking to force the disclosure of the disputed Operation Fast and Furious records. It also filed a lawsuit to obtain documents about the pardon President Bill Clinton granted in 2001 to Marc Rich, a wealthy financier who fled from the United States to Switzerland shortly before being charged with multiple counts of fraud, racketeering and tax evasion. In response to the suit, incoming President Bush invoked executive privilege.

“President Bush argued for the most broad interpretation possible of the long arms of executive privilege,” Farrell said.

Recent administrations have attempted to expand the scope of the privilege, mainly through broadening the notion of deliberative process protections, according to an August Congressional Research Service report on presidential claims of executive privilege. Historically, executive privilege applied to the president’s confidential communications with close advisers, a protection known as the presidential communications privilege. The deliberative process privilege was developed under FOIA and permits agencies to withhold from disclosure pre-decisional advice, opinions and recommendations that are part of their decision-making process. Over time, the executive branch has blended these two privileges together under executive privilege to claim that the protection extends to any policy deliberations or communications within the executive branch in which the president may have a confidentiality interest.

Obama has indeed relied on the deliberative process privilege to withhold documents in the Operation Fast and Furious investigation. In a letter to Obama asking him to invoke executive privilege, Holder explained that presidents repeatedly have invoked the privilege to protect confidential executive branch deliberative materials from congressional subpoenas, stating that “it is well established that the doctrine of executive privilege . . . encompasses Executive Branch deliberative communications.” Holder did not mention any distinction between the deliberative process and presidential communications privileges.

Presidents also attempt to expand executive privilege through the use of various procedures for assessing requests for information that may be protected, according to the CRS report.

The Clinton administration, for example, attempted to expand the privilege by centralizing scrutiny and control of all potential claims of executive privilege with the White House Counsel’s Office. In other words, Clinton established the Counsel’s Office as a central clearinghouse for such claims, requiring all agency heads to directly notify the office when Congress requested any information that could be subject to protection. White House counsel then would seek an accommodation and if unsuccessful, would consult the attorney general about whether executive privilege should be raised. The president then would make the final decision to invoke executive privilege or, in many instances, direct his advisers to do so.

Evolution of the privilege

It wasn’t until 1974, when President Richard Nixon asserted executive privilege to prevent the release of the Watergate tapes, that the doctrine was formally tested in the U.S. Supreme Court.

In United States v. Nixon (“Nixon I”), which involved a judicial trial subpoena issued to the president at the request of the Watergate special prosecutor, the Supreme Court acknowledged that a president’s communications with his close advisers is “presumptively privileged” but rejected Nixon’s assertion that the privilege is absolute. Rather, courts must balance the competing interests at stake, weighing the president’s general need for confidentiality against, in this case, the judiciary’s need for evidence in a criminal proceeding, the Court held.

“The Court maintained that executive privilege, like other governmental powers in a separated system, must be subject to a balancing test — the need for information had to outweigh any presidential claim to secrecy,” said Mark J. Rozell, a professor of public policy at George Mason University and author of “Executive Privilege: Presidential Power, Secrecy and Accountability.”

The Supreme Court weighed in on the issue again in 1977 when it considered Nixon’s challenge to a federal statute that gave custody of presidential records to an official who would screen them for personal and private materials, which would be returned to Nixon, and preserve the rest for historical and government purposes. In rejecting Nixon’s challenge to the act, the Court in Nixon v. Administrator of General Services (“Nixon II”) reiterated the holding in its earlier Nixon case that “the privilege is limited to communications in performance of a president’s responsibilities of his office and made in the process of shaping policies and making decisions.” The Court also found that there was a “substantial public interest” in preserving these materials so that Congress, as part of its “broad investigative power,” could examine them to understand the events that led to Nixon’s resignation.

Since then, a number of federal court decisions have established parameters around the executive privilege doctrine, namely as it relates to the individuals and type of documents covered by the privilege. In the 1997 case In re Sealed Case (“Espy”), which involved a subpoena in the grand jury investigation into improprieties by then Agriculture Secretary Mike Espy, the U.S. Court of Appeals in Washington (D.C. Cir.) restricted the scope of the privilege to White House staff that have “operational proximity” to direct presidential decision making. Thus, the ruling confined the extent of the privilege to the president and his immediate White House advisers only.

In Judicial Watch v. Department of Justice, the 2004 case involving Judicial Watch’s request for documents related to Clinton’s pardon of Marc Rich, the D.C. Circuit applied the principles it announced in Espy. The court found that the deputy attorney general and pardon attorney were too removed from the president and his senior advisers to qualify for protection under the privilege. An organizational, rather than a functional, test should be used to evaluate these claims because the latter could significantly expand the scope of the privilege, the court concluded.

Four years later, the D.C. Circuit provided additional guidance about the types of records that qualify for protection under the doctrine, holding that executive privilege applies only to documents or communications that “directly involve the President” or that were “solicited and received” by White House advisers. The court in Loving v. Department of Defense held that the privilege protected a memorandum prepared for the president by Department of Defense and Army officials regarding an Army private’s death sentence because the requested information “directly involved” the president. In so holding, however, the court clarified that the president need not “solicit and receive” the communications himself in order to successfully invoke the privilege. Rather, documents that the president merely views qualify as those that “directly involve” the president, the court ruled.

Espy, Judicial Watch and Loving addressed the nature and scope of the privilege in the context of judicial and FOIA requests for information from the executive branch. Courts have been reluctant to intervene in similar disputes between Congress and the president. In a pair of cases addressing congressional demands for executive information — United States v. AT&T and United States v. House of Representatives — the D.C. Circuit and D.C. federal trial court respectively declined to resolve the disputes, noting that they should not intervene until the parties had exhausted all possibilities for settlement.

Because of this judicial unwillingness to intervene absent a showing that the accommodation process is failing, few legislative and executive branch disputes over the confidentiality of information have reached the courts for resolution. For that reason, there is continuing uncertainty as to how courts should analyze those like the one at issue in the Operation Fast and Furious investigation.

Most disputes between the executive and Congress are resolved through political negotiation and accommodation, as was the case in the 2007 dispute between the Bush administration and the House Committee on the Judiciary over subpoenas issued to former White House Counsel Harriet Miers and former White House Chief of Staff Joshua Bolten related to the controversial firing of nine U.S. attorneys. The committee was investigating allegations that improper, politically retaliatory criteria motivated the dismissals.

The House Judiciary Committee and the executive ultimately reached an accommodation but not before the committee sued in the federal court in Washington, D.C., which issued the only opinion to this day specifically addressing executive privilege in the congressional-executive context. The court in Committee on the Judiciary v. Miers applied the balancing test the Supreme Court put forth in its Nixon cases and ruled that the former White House employees had to cooperate with the committee’s investigation.

“Notwithstanding its best efforts, the Committee has been unable to discover the underlying causes of the forced terminations of the U.S. Attorneys,” the court said. “The Committee has legitimate reasons to believe that Ms. Miers’s testimony can remedy that deficiency. There is no evidence that the Committee is merely seeking to harass Ms. Miers by calling her to testify.”

The administration appealed the ruling but reached an accommodation before an appellate court heard the case. Under the agreement, the executive provided the committee with some of the requested documents, and Miers was permitted to testify in a closed but transcribed hearing. Her testimony revealed that then Senior Presidential Adviser Karl Rove and other top officials in the Bush White House were deeply involved in pushing for the ouster of the U.S. attorneys.

Although presidents successfully invoke most claims of executive privilege, the assertions sometimes fail, as in the case of Nixon and the Watergate tapes and Clinton in the Monica Lewinsky scandal. Nixon’s failed assertion of executive privilege revealed to the public his steps to cover up the Watergate espionage operation. And because Clinton’s assertion of the privilege was unsuccessful, many of his close advisers were compelled to testify about their knowledge of the president’s sexual relationship with Lewinsky.

However, Rozell notes that a failed assertion of executive privilege depends on how failure is defined.

“On numerous occasions, a president has claimed executive privilege or threatened to do so and then has backed down after White House and congressional staffs worked out accommodations,” Rozell said. “I would define these as instances of the system working successfully, even though the presidents may have failed to withhold all information through the use of executive privilege.”