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Gil Mertz: The president and executive privilege

Posted: July 5, 2012 1:55 a.m.
Updated: July 5, 2012 1:55 a.m.

Recently, President Barack Obama invoked executive privilege for the first time in his administration and refused to turn over some Justice Department documents about a botched anti-smuggling operation that allowed hundreds of guns sold in Arizona to end up in Mexico.

The House Government Oversight and Reform Committee voted to hold Attorney General Eric Holder in contempt of Congress, although the Justice Department declined to prosecute him, saying his decision to withhold information about the bungled gun-tracking operation does not constitute a crime.

So, then, what is executive privilege? Nowhere does the Constitution mention the term or the concept of executive privilege.

However, presidents since George Washington have argued that executive privilege is a principle implied in the constitutionally mandated separation of powers.

In order to do their job, presidents contend, they need candid advice from their aides — and aides simply won’t be willing to give such advice if they know they might be called to testify, under oath, before a congressional committee or in some other forum.

Executive privilege is a difficult and controversial balancing act between a president’s right to candid advice and Congress’ right to information.

It is also a power that political parties tend to support when they control the White House, but abhor when they’re out of power.

This likely explains why neither party is eager for a definitive ruling from the Supreme Court on the specific details of Executive Privilege.

Republican President Dwight Eisenhower first coined the phrase “executive privilege” with his many rejections to Congress to divulge private information that he deemed classified for national security. However, its earliest form was in 1792, when George Washington rebuffed efforts by Congress and the courts to get information about a disastrous expedition against American Indian tribes along the Ohio River.

Washington lost that battle, and he handed over all of the papers that Congress had requested.  

Nixon’s claim of executive privilege was overturned during the Watergate scandal when he was ordered to turn over the infamous White House tapes.

Bill Clinton was the only other president who lost in court on this issue during the Monica Lewinsky circus, when witnesses were forced to testify before the Starr investigation.

Jimmy Carter invoked executive privilege four times, Reagan three, Bush senior just once, Clinton 14 times, George W. Bush six times — and now Barack Obama.

There are several things that make Obama’s decision curious. We were promised the most transparent administration in history.

He has insisted that he knew nothing of this Fast and Furious operation and that Eric Holder was also never involved. So, then, why invoke executive privilege now?  

In a July 2007 interview, Senate Majority Leader Harry Reid was asked about the Bush administration’s view on executive privilege. He said, “It’s hard for me to comprehend how logically, politically, realistically, constitutionally, the president could do this. It’s like saying, ‘I’m king.’ He is not King George, he’s President George.”

Would he feel the same way today about President Obama?

When asked by Larry King on CNN by then-candidate Barack Obama if he favors executive privilege, he said, “There’s been a tendency for this administration to hide behind executive privilege every time there’s something a little shaky that’s taking place. I think the administration would be best served by coming clean on this.”

I think President Obama should heed his own advice today.

With all due respect to the agent who was killed and others harmed in the Fast and Furious operation, it would be naive to think this investigation was not politically motivated by the Republicans.

But invoking executive privilege in this case is what gives this political maneuver creditability. Where there’s smoke, there’s fire.

Posturing full disclosure on these details until after the election is disappointing for an administration that promised transparency.

The best way to stop any political maneuver in its track is to hold nothing back and come clean.

In the words of Dr. Phil, “If you’re not hiding anything, then there’s nothing to hide.”

Mertz is an Agua Dulce resident.


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