The Fast and Furious investigation by the House Oversight and Government Reform Committee has produced President Obama’s first executive privilege claim. The Committee has been aggressively looking into the ATF’s botched operation that deliberately allowed about 2,000 weapons to be sold into Mexico, and distributed among Mexican drug cartels. This resulted in the killing of at least one US Border Patrol agent. The committee has subpoenaed Justice Department documents pertaining to who in the department knew about the operation and when they knew it. The department has refused to turn over most of the subpoenaed documents.
Attorney General Eric Holder has been waltzing the committee around, producing selected documents and (you guessed it) blaming the Bush Administration for similar and worse activities. These charges were so clearly erroneous that Holder later withdrew them. This has resulted in a showdown, and Wednesday the committee voted to hold Holder in contempt. Shortly before the vote, Obama claimed executive privilege in order to refuse to prevent the production of the subpoenaed documents.
Issues as to the proper use of presidential executive privilege have arisen many times, since every president has used it at one time or another. Interestingly, executive privilege is not found in the Constitution, but neither is the right of Congress to investigate. But the Supreme Court has recognized both as implied powers, inherent within the powers that are given to both branches by the Constitution.
What About Executive Privilege?
With regard to executive privilege, the courts have recognized a qualified privilege to protect communications between the president and executive officials, as well as deliberations that go into advice given to the president.
George W. Bush successfully claimed the privilege with regard to matters pertaining to presidential adviser Karl Rove, White House counsel Harriet Meyers and Vice President Dick Cheney. Presidents have, on occasion, cast an even wider net over executive branch action. But I am not aware of any court case that has upheld the right to treat communications between people who work in a department, such as Justice , as privileged. In fact recently the DC Court of Appeals has held just the opposite.
Nevertheless, I believe these are precisely the kind of documents that Obama is claiming as privileged. If in fact the documents, or some of them, were sent to the President or his White House aides, then the President’s claim would be stronger. But it would also mean that they were much more involved in Fast and Furious than anyone knew.
In that case the President would take a public-relations hit (assuming anyone in the mainstream media would report it), but he could then raise another point: Courts are more likely to set aside executive privilege if it’s being used to shield information in a criminal investigation.
Everyone remembers that is what happened in President Nixon’s case. The Special Prosecutor was given access to the Nixon tapes. What is often not remembered is that the Watergate Committee, on which I served as counsel, lost its case and its attempt to obtain the same tapes. In both cases the Supreme Court balanced the legitimate, competing interests of the President, on the one hand and the Special Prosecutor and the committee on the other. The court held that the need to do justice in a criminal case overrode the President’s interest in protecting even his own conversations and that of his aides. On the other hand, the committee’s interest in educating the people and in informing itself with regard to possible future legislation, while legitimate, was not superior to that of the President’s interests, as described above. A congressional committee, of course, has no prosecutorial authority.
The favored position given to a criminal investigation was seen again in 1998 when a federal judge ruled that aides to President Clinton could be called by the Independent Counsel to testify in the Lewinsky scandal.
Getting To The Bottom Of It All
However, even under these circumstances the Obama team would have a problem. The House committee has already caught the Justice Department in a blatant misrepresentation. In February of last year the department in a letter to the committee flatly stated that there was no “gun walking” into Mexico. Now, some of the documents being subpoenaed have to do with determining if this was a deliberate lie to Congress. If the Committee can’t get to the bottom of that, then they might as well close up shop.
Roger Clemens can tell you that even weak cases are doggedly pursued. So, while the House is not in the business of prosecuting criminal cases, they could refer the case to Justice, and since Justice can’t investigate itself, call for Special Counsel. We know how far that would get us.
Others have suggested another approach that would probably be more fruitful — that the House file a civil suit in Federal Court for enforcement of the subpoena and request the court to look at the Justice documents “in camera” to determine if executive privilege is appropriate. I think that having this potential criminal shadow over the proceedings would help the House in this endeavor. Then, if the evidence dictates, a criminal case could be pursued.
A Very Simple Cause: Justice
At the end of the day, nothing will happen in the legal arena to settle the matter before the election, and Obama knows that. But the matter should still be pursued for a very simple reason: justice. Justice for the families of those killed in the botched ATF operation and for anyone who tried to cover it up.
As for right now it’s a political matter and it is apparent that the Obama team is sitting on damaging information. As my pal Andrew McCarthy points out, Holder paints his department as the heroes in all of this. After trying to blame his predecessor (unsuccessfully), he claims that he was the one that put a stop to Fast and Furious. McCarthy asks if you think that this administration, which shovels out the nation’s top secrets at the drop of a hat, would sit on this information if it made them look good.
As all of this plays out, Obama should be asked, again and again, “Why did you choose to wait and exercise your only executive privilege claim to prevent the disclosure of those responsible for the murder of at least one US Border Patrol agent and probably many innocent Mexicans?”
- Fred Thompson
Obama’s use of executive privilege implies he had prior knowledge of F&F despite his oft-repeated claims otherwise. Can executive privilege apply to something with no White House involvement?
The Committee must obtain documents-Civil Court a beginning point. Since Holder has been found in Contempt, what can be done to remove him from office now.
If Obama is re-elected, I feel Impeachment proceedings should begin-but hard documents are required.
If Impeachment proceedings take place, I do hope the definition of “is” has been learned-it it a form of the verb to be-is, am, was, were, being, been, and more.-
I learned this in first grade.
Many thanks for you continuing to write Newsletters and your servie to our America.
Makes one long for the days of the inquisition. We went through similar nonsense with Janet Reno and it was just as painful. However, John Mitchell’s alcoholic wife’s midnight calls to the Justice Department or the FBI (I forget the exact details) settled his hash in short order.
They need to bring in some of the Justice Department staff who can and will provide evidence that will crack the stonewall. Nothing happens in a vacuum.
Only my “personal opinion”, but “where there’s smoke, there’s fire”! Obama-soetoro is simply covering “his own backside”. I would bet a month’s pay, the “original F&F order” came, directly, from the oval office! He “manufactured a crisis”, hoping it would give him a “valid excuse” to remove our 2nd Amendment Rights and it “back fired”, big time!
There are now, at least 4 people, who should be “held in contempt” AND charged with treason and espionage – -holder, “big fat sis” AND bilious hillary; ALL 3 went to Mexico, together, to “present the plan” to Calderon, in March, 2009! The 4th one, is obama-soetoro, himself; the one, who, “manufactured the crisis”!
My observation to why OB did the Executive Privileged. When the Oversight Congress Committee made a final plea for documents, and did not get them, Issa was finished and finally made a decision to vote for contempt of Congress, Holder panicked and called OB. I would bet you, he told OB he better do something right now, because he was not going down alone. So, OB did the only thing he could instantly come up with, giving no thought of whether it was Constitutional or not.
He is guilty, and so is Holder, Napolitano, and Hillary. They publicized this at a Press Conference on March 29, 2009, check it out on YouTube. They were so proud to announce a plan to make the Border safe. Napolitano was the speaker at that Press Conference. They did not call the plan “Fast & Furious gun walking”, but it does not take a rocket scientist to figure it out. All four people should be held accountable for Treason to the U.S. by using an illegal move to pass a gun law for the citizens in this nation.
Dear Mr. Thompson,
Please urge congress to ask Obama what he knew about Fast and Furious and when did he know it. Why is he invoking executive privilege if he didn’t know anything about it. What about Obama’s meeting with the president of Mexico when obama said he would curtail gun running into Mexico? this is 100 times bigger than Watergate. Where is the media????
I havve very little doubt that Obamass has to protect this information because of his own personal involvment in it . Brian Terry was murdred so that the administration could stir up anti-gun sentiments in America and due to Mr, Terry’s death it all backfired on them
I agree, Buck. They just want to put the truth off until after the Nov. election, because they think by then no one will give a damn I and many others will not forget!!
You can tell that Holder is lying when he answers questions. He has the same look that Slick Willie had when he said,”I DIDN’T HAVE SEX WITH THAT WOMAN’.
hello fred,
i have followed this story for several years. little has changed. . my read began with a dealer in px ,az. excaliber arms. i know this man . it was big headlines in the px area. now google it and little remains. he was involved with around 1000 guns . . this is a bag job Fred.it was ment to distroy gunownership plain anf simple. dealers were being used and later indited {dbl crossec}by atf agents. obama is behind it all.
thanks
frank
I guess I’m dense, but if a special prosecutor could be named to impeach Mr. Nixon, whay not one to get Obama and Holder. I believe I read right when you said it would be refered to the Justice Dept. and that would be as far as it would go. Who can name a Special Counsel? I really would like to know.
President wants to contol us though his Health Care Bill and also take our Second
Admendment Rights from us as well. That way if he got his second term ( God Forgive Us) he would continue his Socialist platform ( Make no mistake about it).
We live in a Capitalist Country and he believes that “Profit” is a dirty word!
( Go figure…??? Hello…the man is out-of-touch with reality!)
Being a Veteran myself…Brian Terry is a Hero and Patriot…thank goodness
we learned about F&F and the damage it has caused our country.
( We can put people on the moon and we can’t track a bunch of guns?)
The Supreme court over ruled Executive Privilege for Nixon, and Nixon was claiming Executive Privilege over his own tapes, so unless B0 is complicit in Fast & Fur. then he has no rights, and if he is involved then it is simply a case of
“conflict of interest.”
His right to Executive Privilege and Executive Orders (are actually called directives) from the first Directive by George Washington was actually a suggestion to give thanks to God Almighty, and not an order; B0′s directives are for things like: Do I want to eat steak today or dog; or do I want to have relations with my wife Michael or Larry Sinclare.
Mr. Thomas I believe that Obama needs someone to point out to him he was elected supposedly to protect the American people. It is a crying shame that Border Patrol Agent Terry was murdered protecting Obama, his family and the rest of America for Obama to slap Mr. Terry’s family and the American people.
Obama shows everyone he is not an American and does not care about the Americans. He has lied and claimed to be an American but has never proved it. Every day that goes by he proves it is not America that he thinks of or the people that work in government. He is against anyone that believes in America.
after the birth cert. issues, security leaks, … what would you expect of this dolt in this instance? can’t wait for the four years following his failure at re-elction to explain all that will come undone and public. just hope things can be rapidly repaired and Obama gets exposed as the sham that he is … and his minions especially …
Interesting, Fred, how you nor any of the other media are reporting the fact that the illegals were 18 miles inside the US border when they shot the Border Patrolman, and that the Border Patrol was restricted in their use of weapons to ‘bean bag’ weapons. There are more than enough such ‘skirmishes’ that occur, well removed from the border into the US, some families have had to arm and barricade themselves in their own homes on their ranches/farms well removed from the border. Quick question, Fred, what do you suggest we do to get accuracy and thorough reporting from the media, or is that a lost cause? I look forward to your response and thank you for the hint of a hope for this country. Keep up the fight.
As a retired law enforcement officer here is my take:
The most basic reason that Holder, Obama and the “Dims” are fighting full disclosure of “Fast and Furious” involvement by high placed officials in the Obama administration is the following:
Fact #1. The people that started the program and then allowed it to continue knew at that time that the majority of the guns were going to end up in the hands of drug cartels or their members on both sides of the border.
Fact #2. According to testimony by whistle blowers; no effort was made to track the weapons purposely. In fact when complaints were made about the lack of tracking efforts, agents were ordered to “stand down”.
Fact #3. These same people knew that these guns would be used to kill people. They also knew that some of the people killed would be innocents. This is what happens when you help criminals get guns. Especially vicious criminals in the drug cartels who knowingly and purposely use terror to promote their activities without any regard as to innocent victims.
If you believe that fact 1, Fact 2 and Fact 3 above are true, then:
Those involved should be arrested, indicted and then tried for being knowing and active participants in promoting terrorism against citizens of both Mexico and the United States. They are in fact accessories to mass murder. Holder should not just be held in contempt of Congress; a special prosecutor should be appointed by Congress to begin indictments for criminal charges against Holder and any others who put this Fast and Furious in place and facilitated its implementation.
The elements of a crime are “unity of act and intent” F&F meets that criteria. The intent was to put firearms into the hands of narcoterrorists and then continue that program after guns began turning up at crime scenes to support more gun control regulations. The act was “walking the guns” and telling gun shops to keep selling to the straw buyers even after they began to question the sales encouraged by the ATF. If the president was aware and allowed this program it is not a misdemeanor, it is a massive series of high crimes. It now seems that Obama was complicit. How else can he invoke “executive privilege”?
The obstruction by the present administration is in fact a concerted effort to close and lock any door that opens to the truth and to weld shut the manholes covering the cesspool that is being exposed.
What strikes me is Obama’s hypocrisy on this and other issues. He criticized President Bush for invoking executive privilege, and then uses the maneuver himself. He reverses himself time and again, and just thinks we won’t notice. For the great majority of those who vote for him, he is correct. Any reasonably objective review of the facts would reveal that there is not valid reason to vote for him or D’s. He is duping his supporters to vote for him at their own peril. His policies inevitably will hurt them most.
Even if nothing is settled before the election this has to work as a positive vote getter for the Republicans for several reasons. One, executive privilege raises an annoyance to a potentially serious criminal matter if it is later found there is any trail to the WH. Two, this could all go away tomorrow and turn on the House/Romney if Holder can prove his innocence by releasing the documents requested. Three, now that some Dems are raising the race card again it all becomes tawdry amateur theatre that’s got to play in our favor. All in all, a miserable time at bat for both Holder and Obama. I’m loving it!
The millions of American citizens who knows Obama, know that Obama will do everything and anything to hide everything that will cause to make his name known to the American people, especially they do not sound right and good to the ears of Obama. The proof to these facts can be proven for the fact that Obama, has been suppressing his life history, from his birth certificate, to his school records, and many, many things that the American people wants to know..
Holder can’t remember just when he learned about this operation. BUT — if you go to his web site, you can read his speech in 2009, telling South America what we were planning. And he was backed up by Janet Napolitano. Do you now wonder why “executive privilege”????? They all knew. From the git-go.
http://www.justice.gov/ag/speeches/2009/ag-speech-090402.html
Fred: One might reasonably ask where Woodward and Bernstein are when it appears that this case is (or should be considered) bigger than Watergate. After all, no one died as a result of Watergate but in this scandal we have numerous smoking guns, a dead American boarder patrolman, and perhaps hundreds of dead Mexican nationals.
I believe Woodward still works for the Washington Post and Bernstein works for Newsweek. Where are they on this story? Why can’t they wade in and find another “deep throat”? I suppose it was much more important to bring down a Republican president than a liberal Democrat. They can’t follow the money, but they can follow the dots. By Obama invoking executive privileged the dots lead directly to the White House. This is a cover-up in the most classical sense. Hell, I would be glad to just have the question of who authorized it answered! Is that asking too much?
Please stay on this Fred. We need and we deserve some clear answers in regard to this debacle. Either Obama and Holder are both totally incompetent for not knowing what was going on, or they were aware of Fast & Furious from the start and are now covering it up.
I have spent the better part of my adult life in and around the firearms industry from manufacturing to sales to gunsmithing and carrying them as a Security Contractor. I can’t imagine the pressure or even downright threats that these gun dealers were under to comply with such and idiotic plan as F&F. Did the ATF threaten these guys with an audit if they didn’t do it. Were they allowed a Justice Dept. Immunity from prosecution garantee? I mean basically you have an ATF agent saying to you “Yeah it’s alright, go ahead and commit a felony this time.” Everyone from the top down except the dealers themselves should be prosecuted. And maybe even them for willingly comitting that felony despite having ATF permission. I would have tod the ATF to pound sand because as a dealer I absolutely have the right to refuse a sale to anyone I am suspicious of period!
I have concerns about the gunrunning operations of both the Bush and Obama Administrations that go beyond the Congressional investigation.
The gun running operations of the Bush Administration were significantly different from those of the Obama Administration. One major difference between the two is that under Bush’s Operation Wide Receiver the Mexican government was working with the US Government; thus the sovereignty of Mexico was respected. It was recently confirmed by the Obama DoJ that President Bush’s AG, Michael Mukasey, did not know about Operation Wide Receiver. That, to me, opens up a few questions. At what level in the DoJ and other government departments do lower level officials in any administration have the power to skirt laws, and as in Fast and Furious (F&F) and other Obama Administration gunrunning operations, permit the violation of the sovereignty of other nations? That alone causes me serious concerns about the distribution of power in our ever growing government.
While Operation Wide Receiver had the cooperation of the Mexican Government, at a minimum the FBI had to be involved to allow the background checks for the weapon’s purchasers to be bypassed. In Fast and Furious both US laws and Mexico’s sovereignty were violated. These violations were performed with the knowledge and cooperation of the FBI, DHS, State Department and even the IRS. If I am to believe AG Holder, he and his deputies were not in the approval loop for F&F. If that is true, we have a government that has renegade elements that can violate our laws and other nations sovereignty with impunity. That is very dangerous and I can envision scenarios where some lower level official’s actions could provoke a war.
While the Congressional investigation has centered on the AZ F&F operation there were others by the Obama Administration that have had little public scrutiny. Additionally beyond the questions of who authorized F&F and why, Congress needs to determine at what level can officials authorize such operations and the process. We must not sweep these questions under the carpet.
Al Reasin, you make a good point here about elements in our govt. both skirting US laws as well as violating Mexican sovereignty by not working in cencert with its govt. I haven’t seen that aspect specifically mentioned before.
Dennis. He has done the same thing on so many matters. Obama has been a Hypocrit since he stole the office he has. There has been a book published called “Obama’s 69 Lies”. By Matt Staver from Liberty Counsel. Haven’t aquired it yet but plan to.
I wish everyone would stop referring to Fast & Furious as a “botched” operation. It wasn’t botched at all, it worked exactly as planned, except for the whistleblower part. The intent was to spread as many American sourced semi-automatic weapons as possible throughout the drug war battle zone in order to implicate “loose” American gun laws as the direct cause of Mexican drug war violence. They started that meme at the beginning of the Obozo regime with Hillary, Big Sis and the O himself all repeating the lie that 90% of the recovered weapons came from the USA.
Why would anyone be surprised? The guy has an insatiable ego, works hard to impress himself and doesn’t see himself as President…he sees himself as “King.”
I was a life long Democrat because of Robert Kennedy. I resigned 6 months ago. I no longer recognize the party Robert Kennedy was a part of. I will be working for and donating whatever I’m able to afford (which isn’t much) to the Romney campaign now.
The documents under privilege probably lead directly to the White House.
Fred, I’m sorry you ever left the Senate. You think clearly and write well. IMHO, the president stepped in it by invoking executive privilege, and whatever short term good it does him will be overwhelmed by trying to cover it up.
Best approach? Withhold money from the Justice Department until the documents (unredacted) get sent to the House Committee. Or Mr. Holder could resign and a qualified individual could be nominated for Attorney General.