The two significant developments in the Fast and Furious investigation yesterday were 1) the invocation of executive privilege over the documents subpoenaed from the Justice Department by the House Oversight Committee; and 2) the vote by that committee to hold Attorney General Eric Holder in contempt. It was a busy day for those of us who seek to master the intricacies of constitutional authority. Here’s what I’ve come to after reviewing a number of analyses.
First, executive privilege is only used in matters of national security or dealing with communications between the president and one of the members of his administration. The investigation into Fast and Furious is an attempt to get information from the Department of Justice to figure out who was responsible for this foolish policy of allowing guns to enter Mexico—guns that have led to countless deaths south of our border and the death of one of our own border agents. The Justice Department, while part of the executive branch, is a creation of the Congress. The department is not mentioned in the Constitution; it was created by legislation. If the Congress chose to do so, it could dismantle the department tomorrow. The Justice Department has an obligation to report to Congress and Congress has authority to oversee its actions. That’s all that is taking place in these committee hearings as they try to find the truth behind this failed policy. Yet Holder has stonewalled most requests for documents, and remains adamant even in the face of a rising tide of calls for his resignation.
He has kept Congress at bay for months, sometimes teasing with the promise of information but always drawing back at the last moment. He has proven himself arrogant and untrustworthy.
Second, if Obama is really invoking executive privilege, that invites questions about his involvement in this controversy. After all, if his basis for invoking the privilege is the protection of communication between the office of the president and his subordinates, he must be saying he’s had conversations about this. So now we get back to those age-old questions: what did this president know and when did he know it? Watergate, anyone?
Then there’s the contempt of Congress resolution. It is serious. It hasn’t been carried out often, but penalties do come with it. If the full House, which is planning to vote on it next week, agrees with the committee, Holder could potentially face jail time if he doesn’t cooperate with the investigation. The full House has the authority to call upon the federal judiciary to bring charges against the attorney general. Now, on the practical level, will a Democrat judge, for instance, do this, or will he/she instead follow the expected Obama line that this is a valid use of executive privilege?
Back in 2007, then-senator Barack Obama was quite vocal against President Bush’s use of executive privilege in the matter of dismissing certain attorneys in the Justice Department [a right, by the way, that all presidents have—this was a trumped-up charge with no basis]. At the time, Obama said it was an abuse of power and showed the president had something to hide. Oh, really? Then what does that mean for Mr. Obama now that he is president and is invoking the same privilege? Is this a double standard or is he doing another one of his evolutions in thought?
Unfortunately, most of his evolutions are in the wrong direction. We elected a president who is supposed to be answerable to the people, not a king who is above the law. Given his refusal to enforce the Defense of Marriage Act, his trampling of religious liberty via Obamacare, and his unilateral alteration of illegal immigration policy, we are much closer to a monarch who operates outside the law than we are to a constitutional presidency.