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The President’s Strained Argument for Privilege | Commentary

The long-standing dispute between Congress and the White House over the botched Bureau of Alcohol, Tobacco, Firearms and Explosives gun-running program called “Fast and Furious” has entered a new stage. Currently the matter is before the D.C. District Court where the House of Representatives and Department of Justice are at loggerheads over President Barack Obama’s executive privilege claim to conceal various documents from Congress.

In its latest response, the DOJ is claiming that Obama’s executive privilege assertion is reasonable and that the House is taking an “absolutist and ahistorical approach” in this dispute. As we view the matter, the House position is consistent with past practices, and the executive branch is the one taking the absolutist approach and attempting to expand the scope of executive privilege beyond its traditional confines.

The documents in question are not presidential, but department-level. In 2004, D.C. Circuit Court Judge Judith Rogers explained in a similar type of case that there are “dangers of expanding [executive privilege] too far.” She elaborated that expanding a privilege claim into the departments to keep documents that the president has never seen would be “unprecedented and unwarranted.” The same reasoning applies to the Fast and Furious documents controversy.

The DOJ contends that there needs to be a balancing of interests between the president and Congress. That argument is too general to get at the merits of the current privilege claim. In fact, the presumption in executive privilege disputes is often in favor of transparency and disclosure, unless there is some compelling public interest at stake that necessitates secrecy. What the Obama administration is doing here is attempting to broaden the scope of executive powers in ways that reach well beyond what practice or case law reasonably permits.

There is no question that presidents have the right to maintain secrecy, but only when it is in the public interest to do so and even then executive privilege claims have often given way to the need of Congress to know what the executive branch is doing. The DOJ believes that such a position runs counter to history and declares that “since the inception of our Nation” presidents have asserted executive privilege “to protect the vital interests of the Executive Branch.” That claim is partially true.

Our first president, George Washington, initially refused to release information relevant to a congressional inquiry into the defeat of Gen. Arthur St. Clair’s forces by Native Americans. The president determined after consulting with Cabinet members that he possesses the right to withhold information in cases where there is a clear public interest in so doing. Nonetheless, after considerable pushback by the legislative branch, Washington eventually authorized full disclosure to Congress. Examples like the St. Clair controversy abound throughout U.S. history. Presidents may defend the principle that they possess the privilege, but they have to balance that authority against the needs of Congress during investigations into executive branch actions.

Aside from the particulars of the current executive privilege dispute, the DOJ is claiming that the House is attempting to assert “congressional control over the activities of the Executive Branch,” which runs counter to “the constitutional scheme.” This is a strained interpretation of the Constitution and a misguided view of how the federal government has functioned. All parts of the executive branch owe their existence to an act of Congress. All department actions or programs — including Fast and Furious — must trace their legitimacy back to law. As the law-making branch under the Constitution, it is Congress that does exert a measure of control over the executive branch in not only passing laws but providing oversight of government programs to ensure that public policy is being carried out for the public good.

By any reasonable measure, the Obama administration is preventing the disclosure of information in a congressional investigation using political and legal arguments that are specious at best. Simply put, without a clear showing of a need for secrecy, the president lacks a strong constitutional or legal argument in his favor. As a result, the president should call off the DOJ stonewalling and cooperate with the House in its investigation. Only then can Congress and the president together address the real public policy problem of Mexican gangs and gun violence along the U.S. borders.

Mitchel A. Sollenberger is associate provost at University of Michigan-Dearborn. Mark J. Rozell is acting dean of the School of Public Policy at George Mason University.

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