An executive privilege gone too far

Although President Barack Obama pledged to conduct the "most transparent administration in history", there is not much difference between his and his recent predecessors' administrations regarding protecting executive branch secrecy. The latest ploy by Justice Department attorneys is to shield all agency documents from a congressional committee investigating allegations of wrongdoing in the Fast and Furious scandal.

It is no exaggeration to say that the latest legal argument by the Justice Department is Nixonian in scope.

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Former President Richard Nixon had argued that executive privilege – the recognized presidential power to withhold information under certain circumstances – extended to the entire executive branch of the federal government. The former president reasoned that all officials of the executive branch are "an extension of the president" himself, and thus covered by the privilege. If true, entities with recognized compulsory power – Congress, the courts, independent counsels and special prosecutors – would never be able to access any executive branch documents any time the president uttered the words "executive privilege."  Back then, legal scholars widely denounced, even mocked, the president's assertion of such an expansive executive power.

The Obama White House makes a similar argument. Yet without the taint of a Watergate-level scandal or Nixonian-like reputation for dirty tricks, the denunciation and mockery are not evident. Indeed, the Obama team's latest legal claims of an overly expansive privilege have not registered much attention. Here we need to provide a bit of context and then make clear why the issue is critically important to constitutional government.

In the legal arguments before DC District Court Judge Amy Berman Jackson over access to government documents that may be germane to the Fast and Furious investigation, Justice Department attorney Kathleen Hartnett argued that the "entire work file" of documents sought by the legislative committee are protected by any claim of executive privilege. According to this reasoning, entire categories of documents -- ones collected in large subject folders or even boxes -- are walled off from congressional investigators if potentially any material within may be privileged.

There are three critical problems with this claim. First, executive privilege traditionally has extended to individual documents that reasonably fall within the reach of that presidential power: for example, ones that may expose critical national security information, or that would undermine confidential deliberations between the president and high level White House advisers, or those that might reveal information about ongoing Justice Department investigations. Withholding entire collections of documents – potentially including ones that are directly germane to an investigation and do not violate presidential confidentiality – merely because one of them is privileged, is bluntly an absurd position that, if granted, would make Congress' oversight and investigative powers close to nothing.

Second, the Justice Department argument extends the power of executive privilege deep into executive branch departments and agencies, whereas the principle has generally applied to direct presidential communications. The fact is Fast & Furious was an agency-level gun-tracking program ran by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives. Most presidential administrations in the past half-century have established formal procedures for a claim of executive privilege and these generally have made clear that it is a presidential power, not one that belongs to all who work in the bowels of the bureaucracy.

Finally, a claim of executive privilege on documents related to the failed program is puzzling not only because it operated at the agency-level but because President Obama has never articulated a rationale for asserting it. Perhaps there is a legitimate reason for Obama to make a privilege claim. If so, then the administration needs to clearly explain its rationale.

Reports from the hearing between the Justice Department and House Republicans before Judge Jackson indicate that the court might find some "middle" ground. The acceptance of a qualified claim of executive privilege over agency-level documents would greatly limit Congress's oversight abilities, absent an explanation that the withheld documents fall within the confines of an ongoing DOJ investigation. Even then the material covered should be greatly limited so Congress can fulfill its responsibility under the Constitution to investigate a failed executive branch program.

The executive and legislative branches are not separate, but interdependent. They rely on each other to fulfill the duties that the people have entrusted in the federal government. That interdependency does not mean one branch gets to wall itself off from the other when it alone decides disclosure of testimony or documents would create unnecessary problems or that an investigation is makeweight. Each branch has its own institutional interests. At this point, however, the institutional interests of Congress in investigating and receiving the cooperation of an agency as outweigh President Obama's executive privilege assertion.

Rozell is the acting dean of the School of Public Policy at George Mason University and the author of Executive Privilege. Sollenberger is associate provost at University of Michigan-Dearborn and the author of The President Shall Nominate.