When Presidents Invoke Executive Privilege

President Barack Obama

President Barack Obama (AP Photo/Seth Wenig,File)

June 20, 2012

Today, President Barack Obama invoked executive privilege for the first time in his presidency, refusing to hand over documents connected to the failed gun-trafficking operation known as “Fast and Furious.” But he’s not the first president to try it.

Presidents can claim executive privilege to withhold documents or to prevent members of the executive branch from testifying in order to protect their communications. The reasoning goes that the president’s advisers must be able to offer advice freely and without fear of censure.

But that doesn’t always hold up in court — just ask Richard Nixon, whose attempts to withhold audiotaped recordings connected to the Watergate scandal were blocked by the Supreme Court. Or Bill Clinton, who tried to dodge testimony about Monica Lewinsky and was overruled by the courts.

Today, the White House pointed to recent history in announcing the president’s decision. “Both [Bush and Clinton] protected the same category of documents we’re protecting today (i.e., after-the-fact internal Executive Branch materials responding to congressional and media inquiries — in this case from the Justice Department),” the White House told reporters, adding that presidents have invoked executive privilege 24 times since President Ronald Reagan was in office:

  • Reagan claimed executive privilege three times, according to a 2008 Congressional Research Service report (PDF): in connection with investigations into Canadian oil leases, Superfund enforcement practices, and memos written by Justice William Rehnquist when he worked in the Justice Department, ahead of his nomination proceedings for the Supreme Court.
  • George H.W. Bush only invoked it once: In 1991, he allowed Dick Cheney, then the defense secretary, to not turn over documents subpoenaed during a congressional investigation into a Navy aircraft program.
  • Clinton was the first president to invoke executive privilege without issuing a written order; according to today’s White House statement, he claimed the privilege 14 times, including to avoid having to testify about his involvement in the Whitewater scandal in 1995.
  • Clinton was overruled by a federal judge three years later, when he tried to avoid testifying or allowing his advisers to testify about his relationship with Monica Lewinsky. That made him the first president since Nixon to invoke the privilege and lose.
  • George W. Bush invoked executive privilege six times, including to avoid handing over documents to a congressional committee on the FBI’s use of mob informants in Boston, and to deny access to Justice Department correspondence about Clinton’s fundraising tactics.
  • In 2007, the Bush White House also declined to give Congress documents about the death of Pat Tillman, the football star-turned-Army Ranger, who was killed in Afghanistan. The military initially said Tillman was killed in a firefight with the enemy, but it was later discovered that he was shot in a friendly fire accident. In refusing to hand over the documents, Bush’s counsel said the documents “implicate Executive Branch confidentiality interests.”
  • Barely a month later, Bush used the privilege to allow Karl Rove, his senior adviser at the time, to avoid testifying before Congress during its investigation into the firing of nine federal prosecutors, allegedly for partisan reasons.

In a letter released today, James Cole, the deputy attorney general, said that handing over the Fast and Furious documents “would have significant, damaging consequences,” and that “it would inhibit the candor of such Executive Branch deliberations in the future and significantly impair the Executive Branch’s ability to respond independently and effectively to congressional oversight.”

Operation Fast and Furious was run by the Bureau of Alcohol, Tobacco and Firearms, and allowed guns to pass from the U.S. to Mexico in the hopes of tracking them to the cartels. The weapons did wind up in the hands of cartel members, but the bureau found it couldn’t effectively track the guns. Several of the weapons were then used to commit crimes, including one that was used to kill an American Border Patrol agent.

Rep. Darrell Issa (R-Calif.), chairman of the House Committee on Oversight and Government Reform, had threatened to hold Attorney General Eric Holder in contempt for refusing to produce documents that show that the department concluded the operation was “fundamentally flawed,” according to Holder’s own congressional testimony.

Cole said in his letter that the government had already provided more than 7,600 pages of documents and made “numerous high-level officials available for public congressional testimony, transcribed interviews, and briefings.” He also said that Holder has appeared before nine public hearings to answer questions about the program.

Cole wrote that the Justice Department Inspector General’s office was also investigating the operation, and that the attorney general had imposed reforms to ensure that the “mistakes made in Fast and Furious are not repeated.”

The House Oversight Committee voted 23-17 on Wednesday to hold the attorney general in contempt. The decision will now pass to the House of Representatives for a full vote, which is expected to come before the July 4 break. With the House controlled by Republicans, it’s almost certain to pass.

Update [June 28, 2012]: The House of Representatives voted to hold Holder in contempt, the first time in history for an attorney general. Most House Democrats, including minority leader Nancy Pelosi, walked out in protest amid the vote. It’s now up to the Justice Department to decide how to proceed.

Sarah Childress

Sarah Childress, Former Series Senior Editor, FRONTLINE

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