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Taking executive privilege too far

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The Constitution-based principle of executive privilege has a long and controversial history. 

Most prominently, there was President Richard Nixon’s claim of executive privilege in an attempt to conceal incriminating White House tapes. In rejecting that particular claim, the Supreme Court nonetheless affirmed the constitutional standing of executive privilege as a legitimate presidential power when exercised under appropriate circumstances.

{mosads}The evolution of executive privilege in practice and in law has supported the basic principle that it must be asserted directly by the president himself or by high-level executive branch officers at the direction of the president.

In either instance, a rationale for the claim of executive privilege has been the norm. Furthermore, in the balancing test between the president’s claimed need for secrecy and Congress’s request for information, the presumption is in favor of openness without a clear rationale by the president.

This long-standing basis for resolving interbranch disputes over access to information is being unhinged. 

In the latest turn in the Operation Fast and Furious controversy, D.C. District Judge Amy Jackson accepted the Department of Justice’s (DOJ) argument that President Obama has made an official executive privilege claim, even though he never personally made any such declaration. 

The only evidence provided that Obama has made such a declaration is a letter from former Deputy Attorney General James Cole to former House Oversight Committee Chairman Darrell Issa (R-Calif.).

And yet, even the Cole letter is lacking in a rationale for executive privilege. One has to go to a memorandum written by former Attorney General Eric Holder requesting the president to make a privilege claim to find a presumed justification for withholding documents. However, at no point has Obama or any official made clear what parts of the Holder memo are the basis for an executive privilege claim.

Notwithstanding the absence of a formal executive privilege claim, this case also demonstrates a troubling trend of extending the privilege power into executive branch departments and agencies.

Operation Fast and Furious was a gun-tracking program run by the Bureau of Alcohol, Tobacco, Firearms and Explosives. Obama had no connection to the information requested by Congress.

We now seem to be at the point where a president does not have to make a formal declaration of executive privilege for information not connected to the White House to be walled off from congressional oversight.

In effect, Jackson has declared that executive branch departments and agencies can use executive privilege to stonewall Congress. When Nixon tried to argue that executive privilege extends to the entire executive branch, legal scholars declared this position absurd, even laughable. Now it achieves judicial credibility.

Although the Supreme Court has declared that executive privilege is a limited presidential power, Jackson’s ruling gives far greater deference to the executive branch in these disputes. 

Under the traditional standard, without a very compelling presidential rationale for secrecy, Congress can overcome a claim of privilege by showing that the information is essential to its legislative and oversight functions.

Jackson’s ruling accepts, without much analysis or independent judgment, the DOJ argument that the executive branch’s interest in confidentially outweighs Congress’s interest in oversight.

In the end, her opinion provides the executive branch with an enormous leeway to prevent the disclosure of information to Congress.

Fast and Furious is not the only example of the Obama administration exerting executive privilege without formally declaring it. This case and others create troubling precedents, especially now when backed by a federal court. 

Congress is handicapped in providing oversight of the president and executive branch, as legislative committees frequently appeal to the federal courts to get access to information. But based on the Fast and Furious case, the outcome of such judicial appeals does not look good for Congress or for government openness.

Rozell is acting dean of the School of Policy, Government, and International Affairs at George Mason University and the author of the book “Executive Privilege.” Sollenberger is associate provost at the University of Michigan-Dearborn and co-author of “The President’s Czars: Undermining Congress and the Constitution.”

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