The GOP Is Unbelievably Full of Shit on Executive Privilege

The Fox News wing of the Republican Party (which is to say, the Republican Party), has concluded that Barack Obama is a 21st Century Richard Nixon because he conjured a dreaded, wicked trick called executive privilege to cover up his manifest crimes. Hey, only Republicans are allowed to do that!

Background: Rep. Darrell Issa's House Oversight Committee has for years been pursuing information about Operation Fast and Furious, an ATF gun-running investigation launched in November 2009 in which agents tracked guns purchased in the U.S. to see which Mexican drug cartels they were illegally smuggled to. The investigation resulted in the indictments of 20 gunrunners last January, but two of the weapons that were monitored—not supplied or purchased, just tracked—by the ATF ended up being located at the scene of the murder of a Border Patrol agent. Through a protracted process of negotiation going back to last March, the Department of Justice has handed over more than 7,600 pages of Fast and Furious documents to Issa's committee.

But on Wednesday, the Obama White House asserted executive privilege over a certain subset of the documents that Issa has been asking for. Not all of them, mind you: Just documents generated after February 4, 2011, when congressional investigators began their inquiry. The reason the White House says it can keep those documents—but not all the other Fast and Furious documents created between November 2009 and February 2011—secret is that they deal with "the department's response to congressional oversight and related media inquiries," an arena that involves internal executive branch deliberations that it believes are privileged.

For the record: Executive privilege is a dreadful doctrine. It is corrosive to democracy, a haven for scoundrels, an easy out for liars and cheats. It allows presidents to cover their tracks and throw up obstacles to congressional inquiry, even if a court finds it was improperly invoked months (or years) after the fact. It enshrines secrets, and secrets are bad. Obama is a hypocrite and coward for invoking it.

I'm allowed to say that because that's how I felt about Reagan's use of it to keep then-Supreme Court nominee William Rehnquist's Justice Department memos secret, and George H.W. Bush's use of it to prevent Defense Secretary Dick Cheney from handing over documents about Pentagon cost overruns, and Bill Clinton's use of it to hide his reflexive lies and monstrous appetite for intern-flesh, and George W. Bush's use of it (six all told) to cover up his various scandals. Every president since Kennedy has invoked executive privilege in one form or another. George W. Bush first did it on his 334th day in office. It took Obama 1,240.

Here is a list of things you're likely to hear from conservative pundits about executive privilege, and why they are lies:

Obama Is Attempting to Cover Up the White House's Role in Fast and Furious

"What is the administration trying to hide and are they now admitting that in fact the President himself did have knowledge of the scandal when denied it in the past?" Sean Hannity asked on Wednesday. "For the President to precipitate a constitutional crisis like this, there had to be a political calculation. Whatever it is that they are using privilege for here was worse than precipitating a crisis."

Here's John Boehner: "What is the Obama administration hiding in Fast and Furious?"

Bullshit. Issa is investigating an operation that took place from November 2009, when it was launched, to January 2011, when the indictments it resulted in were unsealed. Obama only asserted privilege over "post-February 4, 2011 documents." Documents generated after Fast and Furious was shut down. He's not claiming any privilege over documents created while Fast and Furious was running (though Attorney General Eric Holder is attempting to withhold documents that could interfere with ongoing investigations). If any documents exist showing a connection between the White House and Fast and Furious while it was running—and Obama has claimed publicly that he only became aware of it after it was shut down—no one is claiming executive privilege over them.

Obama Is Attempting to Cover Up His Role in a Cover-Up

The reason February 4, 2011 is a relevant cut-off date is because that is the date that Holder sent a letter to Sen. Charles Grassley claiming, falsely, that Fast and Furious didn't involve letting guns cross the border. It was later withdrawn. The post-February 4 documents Issa wants presumably include records of how the Justice Department came to change its position and admit that Fast and Furious involved allowing guns over the border.

Conservative lawyer Jay Sekulow, on Fox News: "Here the Attorney General files a letter that's full of inaccuracies, incorrect information, false statement statements and he says, 'Whoops I'm sorry.' ... So, the Attorney General asked the President to assert a privilege to cover his own error. That is the real problem here and that is the fundamental mistake." To repeat: The privilege has been asserted on documents generated after Holder's false letter. Holder's false letter was the (attempted) cover-up. If any records exist showing that the White House was involved in conspiring with Holder to send that misleading letter to Sen. Grassley, no one is asserting executive privilege over them.

Obama Can Only Assert Executive Privilege If He Was Directly Involved

Gotcha! screamed conservatives everywhere: Obama always said he had no involvement with Fast and Furious, and now he's claiming privilege, so either he lied about being out of the loop or he has no claim to privilege. Here's Fox News' Andrew Napolitano:

Now the letter that Eric Holder wrote to the President saying ‘please give me executive privilege' does not say ‘because I discussed this with you Mr. President,' but the implication is there. Executive privilege protects communications with the president; the human being of the president –- not the people who work for him and the Justice Department.

And here's Boehner:

The American people deserve the truth, and the administration has an obligation to turn over the relevant documents right now," said Boehner. "The decision to invoke executive privilege is an admission that White House officials were involved in decisions that misled the Congress and have covered up the truth."

Boehner added that President Obama's decision to invoke executive privilege over documents from the Department of Justice — reaching beyond communications concerning the president and close advisers — raises "very serious questions."

Bullshit. Executive privilege is a gauzy region that is infrequently litigated, so its precise contours are a matter of legitimate dispute. But George W. Bush repeatedly invoked it over documents "beyond communications concerning the president and close advisers," and Boehner wasn't raising "very serious questions" about it back then.

In December 2001, Attorney General John Ashcroft wrote to George W. Bush asking him to invoke executive privilege over Department of Justice memos "containing advice and recommendations concerning whether or not particular criminal prosecutions should be brought." These were purely internal DOJ documents; there was no pretense that the president, his advisers, or anyone in the White House ever laid eyes on them. Bush complied with Ashcroft's request.

In 2008, Bush invoked privilege over Environmental Protection Agency documents concerning ozone regulations. Some of the documents included communications between the EPA and the Office of Management and Budget's Office of Information and Regulatory Affairs—a warren deep within the White House bureaucracy that can hardly be said to harbor any "close advisers" to the president, let alone any whose names the president knew.

Also in 2008, Bush invoked privilege over Justice documents about the investigation into the leaking of Valerie Plame's name. Again, these were Department of Justice, not White House, records. No "serious questions" back then from Boehner.

Sure, Bush Invoked Executive Privilege, But Never to Cover Up Crimes

"As a conservative, I support the idea of executive privilege," Hannity said. "[T]here has been court precedent on this that there is no legitimate claim to executive privilege if this is about covering up any type of wrongdoing." Bullshit. No on has articulated precisely what crime Obama is covering up here. Plenty of people are talking about lying to Congress, but the February 4, 2011 lie isn't covered by the privilege being asserted. But whatever. Let's look at when Bush invoked it: Twice to keep his aides from testifying about why he fired seven U.S. Attorneys and whether political considerations played a role—a scandal that resulted in the resignations of nine DOJ officials including the attorney general himself. And once to keep from handing over documents about a criminal investigation into the Valerie Plame leak.

Those cases had abundant evidence—or at least enough to raise a reasonable suspicion—of potential wrongdoing. There's nothing that even remotely rises to the same level in Fast and Furious.

Obama Is Nixonian

Here's conservative talk-show host Hugh Hewitt (full disclosure, he's a family friend), on Hannity's show comparing Obama to Nixon:

It's the 40th anniversary this month, by the way, of the break-in of Watergate, which is an interesting way for the Obama administration to commemorate that. This is an administration that discloses which should be secret and keep secret that which should be disclosed. They leak our National Security and they hide from Congress, exercising its article one authority oversight.

Well, yeah, I guess he invoked executive privilege, a trait that makes him precisely as Nixonian as George W. Bush, Bill Clinton, George H.W. Bush, Ronald Reagan, Jimmy Carter, and Gerald Ford. But you know who's Nixonian? All the Republicans still currently revered by the GOP who served in the Nixon White House. Like former White House Staff Assistant Dick Cheney. Or former Counsellor to the President Donald Rumsfeld. You know who's real Nixonian? Former Associate White House Counsel Fred Fielding, who worked under John Dean in the Nixon White House. You know what makes him even more Nixonian? He's the guy who Nixonianly urged his boss George W. Bush—who had hired him as White House counsel—to invoke executive privilege to keep Harriet Miers and Josh Bolten from testifying about the U.S. Attorney firings. That's pretty damned Nixonian, huh?

You know what else is Nixonian? Hatching a plot to launch a right-wing news network with taxpayer dollars and operated out of the Nixon fucking White House.

A Border Patrol Agent Died Because of Fast and Furious

"Let's never forget that this is about the dead border patrol agent who was killed serving our country and was killed at the hands of our own weapons which is the real tragedy of all this," said Sekulow on Fox. Bullshit. Border Patrol Agent Brian Terry was murdered in December 2010 after a gun battle with a group of five Mexican bandits. Two assault weapons discovered at the scene had serial numbers matching guns that had been tracked in Fast and Furious. Neither could be linked to the bullet that killed Terry, which was too damaged for detailed ballistic analysis.

Moreover, these were not "our own weapons." They were weapons that gunrunners purchased and smuggled to Mexico. The fact that ATF agents were watching them do so, and tracking the serial numbers, does not mean they were "our weapons." Precisely the same weapons would have gone to precisely the same places if Fast and Furious had never been launched. Terry would still be dead.

None of this means that Obama made the right call, or that Fast and Furious isn't worthy of investigation, or that Holder shouldn't be held to account for it. What it does mean, unequivocally, is that anyone in the Republican Party—unless they joined in January 2009—complaining about Obama's use of executive privilege is an opportunistic hack who has no interest in congressional oversight and every interest in generating a partisan shitstorm to damage their enemies.