Opinion » Ted Rall

A Presidential Lie

Executive privilege does not exist


The Phoenix bureau of the Bureau of Alcohol, Tobacco, Firearms and Explosives sold more than 2,000 guns to operatives it believed to be working for Mexican drug cartels between 2006 and 2010. According to the ATF, Operation Fast and Furious was an attempt to track the weapons to high-level criminals.

Things went south when ATF guns began turning up at crime scenes, including the murder of a U.S. Border Patrol agent. Now, as part of its investigation, the GOP-led House Oversight and Government Reform Committee is demanding the Obama administration turn over documents relevant to the operation.

President Barack Obama refused, invoking "executive privilege."

I put "executive privilege" in quotes because it does not appear in law. Presidents of both parties--back to 1796--have asserted that the constitutional separation of powers grants the Executive Branch an inherent right to ignore subpoenas.

The standard argument is that compliance would reveal the internal deliberations of the president, his Cabinet officers and other government officials who require the presumption of privacy in order to engage in internal debates and deliberations.

This is Obama's first use of "executive privilege," but both by historical and legal standards, it is radically overreaching. The closest we have to a definitive word on executive privilege dates to the Watergate scandal, when the Supreme Court ruled against Richard Nixon's attempt to stonewall Congress. As long as a prosecutor could argue that the relevant documents were essential to the justice of a case, and did not compromise national security, Chief Justice Warren Burger said, the president would have to fork over the documents.

Operation Fast and Furious, a law enforcement matter, doesn't qualify under the Burger ruling.

Once again, Obama is following precedent established by George W. Bush, whose legal advisers seem to have missed the class about how Americans decided not to be ruled by a king. Bush, who promoted another legal fiction, a "unitary executive" branch, invoked "executive privilege" six times.

Because the Constitution grants the Senate (but not the House) the right to ratify treaties, George Washington refused to turn over notes about the negotiations of the Jay Treaty with Great Britain, claiming "executive privilege." But he did give them to the Senate. And the Supreme Court overruled Thomas Jefferson's 1807 claim that providing his private correspondence to Aaron Burr's defense in his treason trial would imperil national security.

Americans enjoy the presumption of innocence and the right to a fair and speedy trial, by a jury of their peers, under the Sixth and Seventh Amendments. Yet Obama--building on a secret assassination program against so-called "terrorists" begun under Bush--asserts the right not only to deprive U.S. citizens of these rights, detaining them indefinitely and denying them a trial, but to assassinate them.

Too bad the Tea Party's constitutional purism is so inconsistent, focusing more on fighting the Democrats than protecting our freedoms. With no one to push back, we're no longer a democracy.