President Obama should withdraw his executive privilege claim in “Fast and Furious”

Executive privilege is what President Nixon claimed to resist a subpoena for the White House tape recordings that revealed his role in the Watergate scandal. Executive privilege is what President Clinton claimed to resist a subpoena for his aides to testify in the Monica Lewinsky scandal.

In each case a court ruled against the president and overruled the claim of executive privilege. President Nixon was forced to resign. President Clinton became the second president in history to be impeached.

In the Nixon case, the Supreme Court placed the burden on the prosecutor seeking to overturn a president’s executive privilege claim to show that the material or testimony sought is “essential to the justice of the case.”

Other presidents have asserted executive privilege to resist efforts to force disclosures or testimony, but most other cases have either been settled through negotiation and partial production of what was sought, or were never resolved by a court.

President Obama on June 20, made his first ever claim of executive privilege in support of Attorney General Eric Holder’s refusal to produce documents sought by the House Oversight and Government Reform Committee in its investigation of a gunwalking scandal involving the Justice Department’s Bureau of Alcohol, Tobacco and Firearms (ATF).

Gunwalking is a tactic which has been used in the past by the ATF to allow illicitly obtained guns to be trafficked to drug cartels in the hope of tracking those guns to high-level figures in the cartels who can then be arrested. But current ATF policy is to interdict all illegally trafficked guns.

In 2009, over the objections of some ATF agents, the ATF in Phoenix began a gunwalking operation called “Fast and Furious”, which allowed thousands of guns bought illicitly in the U.S. to reach the Mexican drug cartels when the ATF lost track of them. Those weapons were then traced to crimes including the murders of a U.S. border patrol agent and hundreds of Mexicans.

In response to congressional inquiries, the Justice Department in a 2011 letter denied that the ATF was engaged in gunwalking. The Justice Department has had to rescind that letter and confess its error. On June 20, the same day President Obama made his executive privilege claim, the House Oversight and Government Reform Committee voted to hold Attorney General Holder in contempt for withholding documents showing how Justice Department officials responded to the scandal. A vote by the full House of Representatives is expected.

Was it wise of President Obama to insert himself into the “Fast and Furious” scandal in support of his Attorney General? Loyalty to subordinates is good but can go too far. Subordinates also need to demonstrate loyalty by taking responsibility for what happens on their watch.

I think Obama has shown too much loyalty to his appointees, not only in this case, but also in standing by Secret Service Director Mark Sullivan despite an obvious culture of misbehavior tolerated and allowed to continue in that agency. Congress should be investigating that agency, too.

Democrats see a politically motivated fishing expedition in the Republican-led House committee’s efforts to subpoena documents from Attorney General Holder. And no doubt some Republicans sense an opportunity to embarrass the Obama administration, though the Romney campaign seems reluctant to take the political focus off of the economy.

Congress should be allowed to carry out its oversight function of the Executive branch. The “Fast and Furious” gunwalking operation was a disaster compounded by Justice Department errors. President Obama should withdraw his claim of executive privilege in the case and instead let the chips fall where they may.