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Chiefshrink
06-21-2012, 03:51 PM
Fast And Furious: Executive Privilege Is Illegitimate to Shield Wrongdoing
Todd GazianoJune 20, 2012 at 12:28 pm(51)

As a strong defender of executive power (when properly exercised) and executive privilege (when properly invoked), I am concerned when claims of executive power or privilege are abused for any reason—especially if they are invoked to shield potential wrongdoing. In addition to shielding the wrongdoing, it jeopardizes the very executive power that the President is entrusted with when Congress and the courts react—as they did in the post-Watergate era—to the abuse of power.

The House Committee on Oversight and Government Reform is rightfully investigating the Fast and Furious debacle, in which the Administration allowed thousands of guns to flow across the Mexican border, resulting in the death of one U.S. border patrol agent and at least 200 Mexican citizens—according to the Mexican attorney general. The most glaring violation of executive power in that investigation prior to today was the refusal of the Department of Justice (DOJ) to turn over 1,300 pages of documents subpoenaed by the committee without even an assertion of executive privilege. Attorney General Eric Holder simply refused on his own initiative in a blatant act of stonewalling.

As Holder surely knew all these past months, there is no privilege that exists between Congress and the executive branch to withhold documents except the constitutional executive privilege, which is based on the separation of powers. For example, the attorney-client privilege does not exist between Congress and the executive branch because they have the same client—the American people.

Holder also knew that executive privilege does not attach to documents automatically. It can be asserted only by the President or with his direct approval. It can be waived; indeed it should be waived in many or most instances when Congress needs the information for its legislative functions. So the slated House committee vote to hold Holder in contempt today was unfortunately necessary to get him to at least reconsider his lawless course of stonewalling.

In a desperate attempt to prevent the contempt vote in the last few hours, Holder asked President Obama to invoke executive privilege to shield these 1,300 pages of documents from Congress, and the President apparently agreed to do so. Yet that is not the end of the story. Even if properly involved, the Supreme Court has made clear that executive privilege is not absolute. DOJ must provide an explanation why all those documents fit one of the recognized categories of executive privilege. It is questionable whether they all are legitimately subject to executive privilege, for several reasons.

First, the Supreme Court in United States v. Nixon (1974) held that executive privilege cannot be invoked at all if the purpose is to shield wrongdoing. The courts held that Nixon’s purported invocation of executive privilege was illegitimate, in part, for that reason.

There is reason to suspect that this might be the case in the Fast and Furious cover-up and stonewalling effort. Congress needs to get to the bottom of that question to prevent an illegal invocation of executive privilege and further abuses of power. That will require an index of the withheld documents and an explanation of why each of them is covered by executive privilege—and more.
Second, even the “deliberative process” species of executive privilege, which is reasonably broad, does not shield the ultimate decisions from congressional inquiry.

Congress is entitled to at least some documents and other information that indicate who the ultimate decision maker was for this disastrous program and why these decisions were made. That information is among the most important documents that are being withheld.
Third, the Supreme Court in the Nixon case also held that even a proper invocation must yield to other branches’ need for information in some cases. So even a proper invocation of executive privilege regarding particular documents is not final.

And lastly, the President is required when invoking executive privilege to try to accommodate the other branches’ legitimate information needs in some other way. For example, it does not harm executive power for the President to selectively waive executive privilege in most instances, even if it hurts him politically by exposing a terrible policy failure or wrongdoing among his staff. The history of executive–congressional relations is filled with accommodations and waivers of privilege. In contrast to voluntary waivers of privilege, Watergate demonstrates that wrongful invocations of privilege can seriously damage the office of the presidency when Congress and the courts impose new constraints on the President’s discretion or power (some rightful and some not).

But there is at least one helpful development in Holder’s request that the President invoke executive privilege to shield these documents: The President now owns the consequences of further stonewalling. There is no ongoing DOJ prosecution or investigation to protect. There is no obvious reason why the President can’t waive even what legitimately privileged documents there are (which is probably far fewer than the 1,300 pages being withheld).
The American people will now clearly understand that it is President Obama who doesn’t want them to know who is to blame for the Fast and Furious scandal—and whether his Administration has done anything to prevent it from happening again.

Todd Gaziano is the Director of the Center for Legal & Judicial Studies at The Heritage Foundation. He previously served in the DOJ’s Office of Legal Counsel, which advises the Attorney General and the President on the invocation of executive privilege. He was also a chief oversight counsel in the House of Representatives.

notorious
06-21-2012, 03:54 PM
Sportsshrink, I hate to say this, but you could start a thread that headlined,"Water is wet", and some posters on this board would immediately start thinking of an argument against you.

Chiefshrink
06-21-2012, 04:00 PM
Sportsshrink, I hate to say this, but you could start a thread that headlined,"Water is wet", and some posters on this board would immediately start thinking of an argument against you.

What can I say:shrug: Some people have a real difficult time with reality and live in denial waaaaaaaay too much.

I posted this because you will begin to see the Marxist Media circle the wagons for Obama and try like hell to say it is legitimate.

cosmo20002
06-21-2012, 04:01 PM
Most of the article is a reasonable overall description of executive privilege. Then towards the end:

"There is no obvious reason why the President can’t waive even what legitimately privileged documents there are"

So, he admits there are legitimately privileged documents. But then says there's no obvious reason not to waive privilege. This just makes no sense.

Cave Johnson
06-21-2012, 04:02 PM
What can I say:shrug: Some people have a real difficult time with reality and live in denial waaaaaaaay too much.

I posted this because you will begin to see the Marxist Media circle the wagons for Obama and try like hell to say it is legitimate.

Was it legit the 6 times that W invoked executive privilege?

cosmo20002
06-21-2012, 04:04 PM
What can I say:shrug: Some people have a real difficult time with reality and live in denial waaaaaaaay too much.



Yeah, like you! Did you forget that you have been exposed as an outright liar? Not just a serial poster of right-wing nutjob nonsense, but a outright liar who knowingly alters facts. What a self-righteous a-hole.

Iz Zat Chew
06-21-2012, 04:14 PM
Yeah, like you! Did you forget that you have been exposed as an outright liar? Not just a serial poster of right-wing nutjob nonsense, but a outright liar who knowingly alters facts. What a self-righteous a-hole.

Is that a canned response you have? Looks the same as we've all seen in recent weeks.

Iz Zat Chew
06-21-2012, 04:21 PM
Was it legit the 6 times that W invoked executive privilege?

Was it legit the 14 times Clinton invoked executive privilege?
The pendulum swings both ways, only it seems further with democrats (using clinton as the example). Reagan - 3 (8 years), Bush I - 1 (4 years), Bush II - 6 (8 years)and now Obama - 1 (in 3 years)

Cave Johnson
06-21-2012, 04:29 PM
Was it legit the 14 times Clinton invoked executive privilege?
The pendulum swings both ways, only it seems further with democrats (using clinton as the example). Reagan - 3 (8 years), Bush I - 1 (4 years), Bush II - 6 (8 years)and now Obama - 1 (in 3 years)

Or it could have had something to do with the fishing expedition conducted by the independent counsel. You know, the one that Congress refused to reauthorize in 1999.

Just a guess, though.

Bewbies
06-21-2012, 04:32 PM
This country will be better off when more people choose right and wrong and not right or left.

Things are either right for all, or wrong for all...

cosmo20002
06-21-2012, 04:37 PM
Was it legit the 14 times Clinton invoked executive privilege?

The pendulum swings both ways, only it seems further with democrats (using clinton as the example). Reagan - 3 (8 years), Bush I - 1 (4 years), Bush II - 6 (8 years)and now Obama - 1 (in 3 years)

No, it wasn't. And the court smacked him down, ruling that the Lewinsky stuff wasn't covered.

As for the others you mention, only Reagan supports your incorrect assertion, and I'd point out that Reagan's relative lack of invoking (although 3 times is not nothing) might have at least something to do with Congress not making unreasonable demands.

suzzer99
06-21-2012, 06:54 PM
This country will be better off when more people choose right and wrong and not right or left.

Things are either right for all, or wrong for all...

You mean like how the republicans thought individual insurance mandates were "right for all" from 1994 until 2008 or so, until they immediately became "wrong for all"?

Yeah I agree, lets pick one side and stick with it, not flip-flop based the political need to oppose everything your opponent proposes.

La literatura
06-21-2012, 06:55 PM
This country will be better off when more people choose right and wrong and not right or left.

Things are either right for all, or wrong for all...

"Why doesn't Congress just do the right thing!?!?"

Bewbies
06-21-2012, 07:00 PM
You mean like how the republicans thought individual insurance mandates were "right for all" from 1994 until 2008 or so, until they immediately became "wrong for all"?

Yeah I agree, lets pick one side and stick with it, not flip-flop based the political need to oppose everything your opponent proposes.

Dumbass.

Bewbies
06-21-2012, 07:01 PM
"Why doesn't Congress just do the right thing!?!?"



I wasn't referring to Congress.

RedNeckRaider
06-21-2012, 07:05 PM
Dumbass.

No shit, just pick a party and blindly follow LMAO

Iz Zat Chew
06-21-2012, 07:54 PM
Or it could have had something to do with the fishing expedition conducted by the independent counsel. You know, the one that Congress refused to reauthorize in 1999.

Just a guess, though.

Fishing expedition? Which one, there have been so many.

Iz Zat Chew
06-21-2012, 07:55 PM
No, it wasn't. And the court smacked him down, ruling that the Lewinsky stuff wasn't covered.

As for the others you mention, only Reagan supports your incorrect assertion, and I'd point out that Reagan's relative lack of invoking (although 3 times is not nothing) might have at least something to do with Congress not making unreasonable demands.

What unreasonable demands are you speaking of, or are you just throwing more junk into the mix?

cosmo20002
06-21-2012, 08:04 PM
What unreasonable demands are you speaking of, or are you just throwing more junk into the mix?

Re-read. You obviously have a problem understanding things.

Iz Zat Chew
06-21-2012, 08:07 PM
Re-read. You obviously have a problem understanding things.

No, you have a problem saying things that are factual. Put up the links or STFU!

You always whine about not using data, but you never provide any.

............

waiting............

Cave Johnson
06-21-2012, 09:25 PM
This country will be better off when more people choose right and wrong and not right or left.

Things are either right for all, or wrong for all...

Platitudes are the answer!!

Chiefshrink
06-21-2012, 09:32 PM
Yeah, like you! Did you forget that you have been exposed as an outright liar? Not just a serial poster of right-wing nutjob nonsense, but a outright liar who knowingly alters facts. What a self-righteous a-hole.

ROFLROFLROFL Whatever 'cosmonaut' !!

headsnap
06-21-2012, 09:48 PM
ROFLROFLROFL Whatever 'cosmonaut' !!

HEY!! :cuss::$2500:

Iz Zat Chew
06-21-2012, 09:49 PM
No, you have a problem saying things that are factual. Put up the links or STFU!

You always whine about not using data, but you never provide any.

............

waiting............


...................... still waiting for your proof.

cosmo20002
06-22-2012, 12:46 AM
...................... still waiting for your proof.

Go back and read what I wrote. I didn't say there were unreasonable requests. Just the opposite:

"I'd point out that Reagan's relative lack of invoking (although 3 times is not nothing) might have at least something to do with Congress not making unreasonable demands."

You see that? I said NOT MAKING unreasonable demands. Nice try on calling me out and then doing a follow-up "where's the proof?" post (which YOU should NEVER be allowed to do), but you really screwed this one up. I told you to re-read it.

headsnap
06-22-2012, 06:11 AM
Go back and read what I wrote. I didn't say there were unreasonable requests. Just the opposite:

"I'd point out that Reagan's relative lack of invoking (although 3 times is not nothing) might have at least something to do with Congress not making unreasonable demands."

You see that? I said NOT MAKING unreasonable demands. Nice try on calling me out and then doing a follow-up "where's the proof?" post (which YOU should NEVER be allowed to do), but you really screwed this one up. I told you to re-read it.

This current demand seems very reasonable.

Iz Zat Chew
06-22-2012, 07:10 AM
Go back and read what I wrote. I didn't say there were unreasonable requests. Just the opposite:

"I'd point out that Reagan's relative lack of invoking (although 3 times is not nothing) might have at least something to do with Congress not making unreasonable demands."

You see that? I said NOT MAKING unreasonable demands. Nice try on calling me out and then doing a follow-up "where's the proof?" post (which YOU should NEVER be allowed to do), but you really screwed this one up. I told you to re-read it.

I read what you wrote the first time, I re-read what you said when you made an ass of yourself. NOW, as someone else stated in so many words, where are the unreasonable requests now? How stupid are YOU. Get your head out of your ass and provide the unreasonable demands that congress made to Obama!

Now you blithering idiot
.............................where are the unreasonable requests made by congress NOW, as in the current situation that caused you to proclaim that congress did not give Reagan unreasonable requests.

.............................what were the circumstances that caused Reagan to invoke Executive Privilege the 3 times he was in office? You still don't have a clue about the 8 years of Reagan. I won't wait for an answer to this one, I doubt you have the resources to find an answer.

patteeu
06-22-2012, 08:37 AM
Most of the article is a reasonable overall description of executive privilege. Then towards the end:

"There is no obvious reason why the President can’t waive even what legitimately privileged documents there are"

So, he admits there are legitimately privileged documents. But then says there's no obvious reason not to waive privilege. This just makes no sense.

Did you notice that he apparently missed the cosmo species of executive privilege to protect national secrets?

patteeu
06-22-2012, 08:37 AM
Was it legit the 6 times that W invoked executive privilege?

Yes.

patteeu
06-22-2012, 08:43 AM
You mean like how the republicans thought individual insurance mandates were "right for all" from 1994 until 2008 or so, until they immediately became "wrong for all"?

Yeah I agree, lets pick one side and stick with it, not flip-flop based the political need to oppose everything your opponent proposes.

cosmo has laid claim to the same "middle of the road" political territory that you occupy, suzzer99. Are they teaching you guys to say that in the Cloward & Piven summer camps these days?

cosmo20002
06-22-2012, 10:28 AM
Did you notice that he apparently missed the cosmo species of executive privilege to protect national secrets?

Pat, I'm not trying to write a legal brief. There's only a couple of court cases on the issue. I told you check them out, and you'll see the standard for invoking EP.

Iz Zat Chew
06-22-2012, 10:37 AM
Pat, I'm not trying to write a legal brief. There's only a couple of court cases on the issue. I told you check them out, and you'll see the standard for invoking EP.

To be sure of hitting the target, shoot first and call whatever you hit the target. The bad thing is that you've never hit the target.

Cave Johnson
06-22-2012, 10:58 AM
Yes.

Thanks for being honest about lacking any objectivity on the matter.

patteeu
06-22-2012, 11:18 AM
Pat, I'm not trying to write a legal brief. There's only a couple of court cases on the issue. I told you check them out, and you'll see the standard for invoking EP.

I suspect that the guy who wrote the legal book you're reading from is the same semi-illiterate nincompoop who wrote your dictionary.

patteeu
06-22-2012, 11:18 AM
Thanks for being honest about lacking any objectivity on the matter.

Tell me how I'm wrong. Did the SCOTUS ever rule against Bush's assertions of EP, for example?

Iz Zat Chew
06-22-2012, 11:21 AM
Tell me how I'm wrong. Did the SCOTUS ever rule against Bush's assertions of EP, for example?

Did Bush ever invoke EP to cover up something he was involved with? I don't think so, but the curent EP seems to be self serving for Obama. He must have done it without the knowledge of his handlers. He seems to have jumped into the pile of shit with both feet.

cosmo20002
06-22-2012, 11:28 AM
Tell me how I'm wrong. Did the SCOTUS ever rule against Bush's assertions of EP, for example?

You can look this stuff up, you know. Almost every assertion of EP, including W's, has been settled between the Pres and Congress without the court getting involved. Nixon lost in court, and Clinton lost--the assertions related to the Monica Lewinsky business. That of course doesn't mean the other assertions of EP were "correct" or "incorrect." The issue was negotiated and settled, so there was no legal ruling on them.

Cave Johnson
06-22-2012, 11:34 AM
Tell me how I'm wrong. Did the SCOTUS ever rule against Bush's assertions of EP, for example?

You mean the one where Scalia went on a hunting trip with Cheney and then refused to recuse himself?

patteeu
06-22-2012, 12:08 PM
You can look this stuff up, you know. Almost every assertion of EP, including W's, has been settled between the Pres and Congress without the court getting involved. Nixon lost in court, and Clinton lost--the assertions related to the Monica Lewinsky business. That of course doesn't mean the other assertions of EP were "correct" or "incorrect." The issue was negotiated and settled, so there was no legal ruling on them.

You mean the one where Scalia went on a hunting trip with Cheney and then refused to recuse himself?

No, I mean point out how I'm wrong. It's not complicated.

Iz Zat Chew
06-22-2012, 12:12 PM
You can look this stuff up, you know. Almost every assertion of EP, including W's, has been settled between the Pres and Congress without the court getting involved. Nixon lost in court, and Clinton lost--the assertions related to the Monica Lewinsky business. That of course doesn't mean the other assertions of EP were "correct" or "incorrect." The issue was negotiated and settled, so there was no legal ruling on them.

I don't think anyone needs to do your work for you. If the information is there as you say, then post it. The reason all of the cases of EP were settled between the president and congress was because they were able to work out the issues. I doubt that Obama is going to be able to wiggle out of this, his hands are dirty.

cosmo20002
06-22-2012, 12:22 PM
No, I mean point out how I'm wrong. It's not complicated.

Wrong about what? What was the question--Did the SCOTUS ever rule against Bush's assertions of EP? No. They didn't rule for and they didn't rule against. They didn't rule at all, and no court ruled anything because it didn't go to court.

vailpass
06-22-2012, 12:28 PM
Wrong about what? What was the question--Did the SCOTUS ever rule against Bush's assertions of EP? No. They didn't rule for and they didn't rule against. They didn't rule at all, and no court ruled anything because it didn't go to court.

Jensen, is that you?

Iz Zat Chew
06-22-2012, 12:30 PM
Wrong about what? What was the question--Did the SCOTUS ever rule against Bush's assertions of EP? No. They didn't rule for and they didn't rule against. They didn't rule at all, and no court ruled anything because it didn't go to court.

And no president had his ass on the line for any of those EP's.

patteeu
06-22-2012, 01:35 PM
Wrong about what? What was the question--Did the SCOTUS ever rule against Bush's assertions of EP? No. They didn't rule for and they didn't rule against. They didn't rule at all, and no court ruled anything because it didn't go to court.

You were a late-comer to the discussion so let me recap. The question was:

Was it legit the 6 times that W invoked executive privilege?

To which I replied:

Yes.

Pittsie seems to think I'm wrong so I asked him to tell me about it. See, not complicated at all.