A number of excellent points are made in this morning’s NRO editorial on President Obama’s wayward assertion of executive privilege to withhold Justice Department documents from the congressional committee probing the Fast and Furious scandal. I want to highlight one of them, because it reinforces a point I tried to make in yesterday’s post about the impropriety of withholding Justice Department materials from Congress, the governmental branch on which the Justice Department’s existence depends.
The editors write (my italics):
Executive privilege serves a necessary function in our constitutional order, reinforcing the separation of powers and protecting sensitive deliberations within the executive branch, and it is especially strong when the president or his closest advisers in the White House are involved in the communication. In this case, the administration has long denied that the president was directly involved. Instead, Attorney General Eric Holder wasted everyone’s time invoking a spurious form of deliberative privilege that was completely decoupled from executive privilege. Such a privilege has no force vis-à-vis Congress. By finally invoking executive privilege yesterday, the president belatedly acknowledged that his attorney general was full of it.
I contended yesterday that even when plausibly invoked — meaning, invoked by the president as an actual assertion of executive privilege — the “deliberative process” theory of executive privilege is not compelling when what is at issue is the the shielding of Justice Department documents (as opposed to presidential communications) from Congress. The Constitution does not require a Justice Department; the Department is a creature of statute, would not exist without Congress, depends entirely on Congress for its jurisdiction and budget, and could be repealed by Congress tomorrow with no constitutional repercussions. But at least when the president — the only official in government capable of invoking executive privilege — asserted a privilege to withhold information based on executive branch “deliberative process,” he was invoking a privilege rooted in law (just one that, for various reasons, is unavailing in this instance).
Holder, by contrast, did not assert a legal privilege. He instead made up a frivolous rationale for obstructing Congress’s investigation and relied on it for months — even as he and his subordinates have repeatedly been forced to acknowledge that representations they made to the committee were false. It is one thing to posit a real legal claim that happens to be inapposite under the circumstances. It is quite another for the chief federal law-enforcement official in the country, whose post is created by and reliant on Congress, to stymie Congress based on a fabrication that he passed off as a legal theory.
I posed a question before Holder was confirmed that seems a lot more pressing now: How would Holder fare under the criteria for attorney general fitness that Democrats applied to Alberto Gonzales? Recall that Attorney General Gonzales was run out of town by Democrats and their media minions based on (a) a trumped up scandal that was not a crime (presidents do not need a reason to remove U.S. attorneys); (b) a scandal that was trumped up because what Bush did, comparatively, was child’s play (he fired eight U.S. attorneys whereas Clinton, for no cause other than patronage, fired 92 of them); and (c) the allegation that Gonzales and his subordinates had provided false information to Congress — and when it emerged that this provision of false information was probably not intentional, Senate Democrats inveighed that Gonzales still had to go because an attorney general, by their lights, is unfit to serve if lawmakers cannot trust that he is informing Congress accurately, regardless of whether this is due to mendacity or incompetence.
When I raised this in connection with Holder, it was due to an actual, outrageous scandal he already had under his belt when Obama nominated him: the Marc Rich pardon, an episode of sheer corruption in which Holder was a central figure and as to which, as I have demonstrated, he provided Congress with testimony that, to put it charitably, was grossly inaccurate. But that was nothing compared to Fast and Furious, which involves the reckless provision of over a thousand weapons to murderous foreign drug cartels, the foreseeable resultant murders of scores of people, the killing of a federal law enforcement officer, multiple instances of providing false information to the investigating congressional committee, and — we now know — the obstruction of Congress by reliance on a specious “privilege” with no basis in law . . . certainly not as a rationale for stonewalling Congress.
If Holder were a Republican — well, never mind: If Holder were a Republican, he’d never have survived the FALN pardons, never mind Marc Rich; and a Republican president would never have nominated him because he’d know the Democrats would never spinelessly roll over and confirm him.