With today’s announcement that the Obama administration will assert executive privilege over some “Fast & Furious” documents, a number of critics in Congress have suggested that this must mean the President was involved with the scandal. But this conclusion relies on a fundamental misunderstanding — or willful ignorance — on their part about what executive privilege is.
A spokesman for Speaker of the House John Boehner (R-OH) immediately went on the attack, saying:
The White House decision to invoke executive privilege implies that White House officials were either involved in the ‘Fast and Furious’ operation or the cover-up that followed. The Administration has always insisted that wasn’t the case. Were they lying, or are they now bending the law to hide the truth?
His leap was echoed by Rep. James Lankford (R-OK) at today’s House Oversight Committee debate of a contempt citation for Attorney General Eric Holder and by Sen. Chuck Grassley (R-IA).
But there are two types of executive privilege: the robust “presidential communications privilege” and the more limited “deliberative process privilege.” The White House may invoke the latter to apply to executive branch officials outside of the president’s inner circle, as long as they were involved with the government’s decision-making process. Presidents Ronald Reagan, George H.W. Bush, and George W. Bush all asserted executive privilege in matters not involving presidential communications. And Bush Administration Attorney General Michael Mukasey invoked the same “deliberative process privilege” as recently as 2008, rejecting congressional subpoenas for reports of Department of Justice interviews with the White House staff regarding the Valerie Plame Wilson identify leak investigation.
Furthermore, the very man behind the witch-hunt against Holder, Chairman Darrell Issa (R-CA), has in the past recognized that same privilege for Bush administration deliberations.
In a May 2008 hearing, then-Ranking Minority Member Issa defended Bush EPA Administrator Stephen Johnson’s right not to answer questions, comparing her deliberations to the “speech and debate” protections enjoyed by Congress:
So it probably shouldn’t come as a surprise — or it should come as a surprise to you that we are surprised that you are not going to tell us whether or not there were conversations within the executive branch that led to your independent decision.
The mere invocation of executive privilege can hardly be interpreted as any evidence of involvement by the president himself — something clearly absent in this relatively low-level screw-up.
Steven Perlberg contributed to this report.