Obama Discovers the Convenience of Executive Privilege

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He criticized its invocation during the Bush years, and pledged to run the most transparent administration ever. But his hypocrisy is unlikely to hurt him.



Despite a history of skepticism toward invocations of executive privilege, President Obama -- who promised to run "the most transparent administration in history" -- has come to appreciate their utility this week. It's an election year, for Pete's sake! And who knows when Attorney General Eric Holder knew about the decision to let illegally purchased guns flow across the Mexican border? By impeding Rep. Darrell Issa's investigation, Obama can perhaps avoid the release of embarrassing information at minimal political cost, safe in the knowledge that on issues as diverse as the War Powers Resolution, the state-secrets privilege, and treatment of whistleblowers, his egregious hypocrisy hasn't cost him support among fellow Democrats. The cause of transparency will suffer. But it isn't like its champions have anywhere to go.

Said the Department of Justice in the letter explaining its latest resistance, "Such compelled disclosure would be inconsistent with the separation of powers established in the Constitution and would potentially create an imbalance in the relationship between these two co-equal branches."

Isn't that something?

These days the executive branch asserts the power to spy on, indefinitely detain, or kill anyone it likes without due process, so long as it invokes the specter of terrorism, even as it reshapes immigration policy with an executive order. But turning over documents about running guns into Mexico? That would supposedly put America at risk of the legislature dominating the presidency.

It's defensible theory that's absurd in practice.

Obama defenders are also arguing that Issa's Fast and Furious investigation is motivated by politics. Yes, of course it is! Politics is the only force that motivates our political elites to hold one another to account when they do something wrong. Does anyone suggest we rely on their moral compass instead? Issa and Republicans were made aware of some indefensible behavior. Thanks to their political instincts, they're working hard to expose as much information as possible.

That's a good thing, even if it has its associated pathologies.  

Says MSNBC, "The White House points out to reporters that President George W. Bush asserted executive privilege six times, while Bill Clinton did so in 14 instances." Yes, President Bush invoked executive privilege in the following cases: 1) To deny details about the FBI's misuse of organized crime informants. 2) To protect the secrecy of Dick Cheney's meetings with energy executives. 3) To keep Harriet Miers from testifying in the U.S. Attorney firing scandal. 5) To keep Sara Taylor from testifying in the same inquiry. 5) To keep Karl Rove from testifying in the same inquiry. 6) To protect documents in an inquiry related to the death of Pat Tillman.

Team Obama is now citing these invocations. How many of them does President Obama regard as legitimate?   

Here is the logic that the Bush Administration used when invoking executive privilege:

For the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch.

In Fast and Furious, Obama and Holder both deny being aware of discussions and deliberations about the objectionable behavior at issue. Yet they'd have us believe that protecting them is sufficiently important to deny full information to what is legitimate congressional oversight. For more on The Most Transparent Administration Ever, see here.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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