Fast And Furious: Executive Privilege Is Illegitimate to Shield Wrongdoing!

Fast And Furious: Executive Privilege Is Illegitimate to Shield Wrongdoing!(Heritage).By Todd Gaziano.As Holder surely knew all these past months, there is no privilege that exists between Congress and the executive branch to withhold documents except the constitutional executive privilege, which is based on the separation of powers. The slated House committee vote to hold Holder in contempt today was unfortunately necessary to get him to at least reconsider his lawless course of stonewalling. In a desperate attempt to prevent the contempt vote in the last few hours, Holder asked President Obama to invoke executive privilege to shield these 1,300 pages of documents from Congress, and the President apparently agreed to do so. Yet that is not the end of the story. Even if properly involved, the Supreme Court has made clear that executive privilege is not absolute. DOJ must provide an explanation why all those documents fit one of the recognized categories of executive privilege. It is questionable whether they all are legitimately subject to executive privilege, for several reasons.

First, the Supreme Court in United States v. Nixon (1974) held that executive privilege cannot be invoked at all if the purpose is to shield wrongdoing. 

The courts held that Nixon’s purported invocation of executive privilege was illegitimate, in part, for that reason. There is reason to suspect that this might be the case in the Fast and Furious cover-up and stonewalling effort. Congress needs to get to the bottom of that question to prevent an illegal invocation of executive privilege and further abuses of power. That will require an index of the withheld documents and an explanation of why each of them is covered by executive privilege—and more. Even a proper invocation of executive privilege regarding particular documents is not final. But there is at least one helpful development in Holder’s request that the President invoke executive privilege to shield these documents: The President now owns the consequences of further stonewalling.The American people will now clearly understand that it is President Obama who doesn’t want them to know who is to blame for the Fast and Furious scandal—and whether his Administration has done anything to prevent it from happening again. Read the full story here.Todd Gaziano is the Director of the Center for Legal and Judicial Studies at The Heritage Foundation. He previously served in the DOJ’s Office of Legal Counsel, which advises the Attorney General and the President on the invocation of executive privilege. He was also a chief oversight counsel in the House of Representatives