Obama’s Assertion Of Executive Privilege And The Law

Is there any legal merit to the Administration's invocation of Executive Privilege?

As I noted earlier today, the Obama Administration has invoked Executive Privilege with respect to the documents that are the subject of a dispute between Attorney General Eric Holder and the House Government Reform And Oversight Committee related to the committee’s investigation of the Fast And Furious scandal.  Since the only written record we have of the invocation of the privilege at this time is the letter that the Justice Department delivered to Committee Chair Darrell Issa less than an hour before today’s hearing on whether or not to hold the Attorney General in contempt, it’s hard to fully evaluate the merits of the privilege claim. Suffice it say that it would appear that we’ve got a full-fledged Separation Of Powers conflict brewing between the House and the White House that, if left unresolved, will require a court to at some point rule on the Executive Branch’s claim of privilege. So, this seems as good at time as any to take a look at the legal issues surrounding what remains, even for many attorneys, a mysterious, somewhat ambiguous, and often highly politically charged area of the Constitutional Law.

As a preliminary matter, it’s necessary to clear up something that has been repeated several times today, both in the Committee room and on television. Specifically, it is simply not the case that Executive Privilege only applies if the President is personally involved in the matter that is the subject of a particular investigation, hearing, or trial. It’s easy, perhaps, to understand why people might think that this is the case. The most famous Executive Privilege case, and one of the few times that the courts have actually spoken on the issue, is United States v. Nixon, which involved President Nixon’s attempt to withhold the recordings made in the Oval Office from the Watergate Special Prosecutor. In that case, the Court rejected President Nixon’s assertion of a full and unqualified privilege, thus ordering him to turn over the tapes which led Nixon to resign 15 days later after it was revealed that included among those tapes was evidence of Nixon’s involvement in covering up the the Watergate break-in.  The Nixon Court, however, did not say that there was no Executive Privilege at all and, ever since that decision was handed down in 1972 the Executive Branch and Congress have struggled more than once over the boundaries of the privilege and the question of what the President may and may not withhold.

Essentially, what the Nixon case, along with legal developments beforehand, tells us is that there are two kinds of Executive Privilege. The first kind of Executive Privilege is generally referred to as the “Presidential Communications Privilege” and covers communications between the President and his advisers. The Vice-President also has this privilege which he can assert on his own if necessary. This privilege is recognized as being rooted in the Constitution, the Separation Of Powers, and the idea that a President must be able to receive candid advice from his advisers. In order for this privilege to be invoked, though, it must involve direct communications between the President and his advisers. The second kind of Executive Privilege is generally referred to as the “Deliberative Process Privilege” and it covers certain kinds of internal communications inside the agencies of the Executive Branch. This privilege is much weaker than the Communications Privilege in that it is rooted in Common Law rather than the Constitution. The exact extent of this privilege hasn’t been heavily litigated so it’s rather unclear what is and isn’t covered, and when the interests of Congress in performing its Constitutional role of overseeing the operations of Executive Branch agencies would override it. At the very least, though, it is accurate to state that the Deliberative Process Privilege is much weaker and far smaller in scope than the Presidential Communications Privilege.

Based on all of the available information, it seems fairly apparent that the White House’s invocation of privilege in this case is meant to invoke the Deliberative Process Privilege, largely because there is no evidence that the White House in general or the President in particular were involved in the Fast and Furious Operation or the investigation that occurred in the aftermath of the murder of Brian Terry. Therefore, to the extent that the White House is claiming privilege in this matter, the claim is going to be weak and may only be limited to specific categories of documents. Moreover, since the Deliberative Process Privilege is not absolute, it is possible that any claim of privilege will be overridden by the public interest in investigation and oversight by Congress.

With that in mind, what exactly can we say about the Administration’s invocation of privilege in this case?

Todd Gaziano argues that Holder is going to have a weak argument if this matter actually goes to Court:

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).

As I said at the start of this post, it is not easy to evaluate the merits of the Administration’s Executive Privilege claim without having a better idea of what documents they are claiming are subject to the privilege. Hopefully, that will become clear once the House is provided with a Privilege Log, which they are at the very least entitled to under these circumstances. At the very least, though, it strikes me that the Administration’s claims are going to be tough to defend on the facts and the law. The fact that the Administration waited eight months after the subpoena was issued to invoke the privilege, during which time the Attorney General himself continually stated that he was willing to give the Committee access to at least some of the documents would seem to lend some credence to those who suspect that the invocation of privilege on the same day that the Committee was going to vote to hold the Attorney General in contempt was merely a political move. On the law, it’s hard to see how the Deliberative Process Privilege will be able to overcome the public interest in Congressional oversight and investigation. On balance, it seems rather obvious where the benefit of the doubt should be given.

There will be more to come from this, of course, and perhaps this will all be resolved before it ever makes it to Court. For the moment, though, we’ve got a conflict between the Obama Administration’s previously stated committment to transparency and its apparent desire to shield from public view whatever might be in those documents.

FILED UNDER: Barack Obama, Congress, Law and the Courts, Politicians, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. bains says:

    On the political side, it sure seems that all the various explanations the administration has been offering stand in stark contrast to their invocation of executive privilege.

    If Fast and Furious were any of the narratives Holder (and now Obama) claim, the release of the requested documents would prove their case.

  2. Jay_Dubbs says:

    From a political viewpoint, it appears that both sides wanted this showdown. It will certainly gin up the partisans and both sides will try to use it to show how bad the other is to those in the middle.

    From a legal view point, without a privlege log, there is simply no way to have any idea what these documents say and no way for anyone to be able to state with any authority whether this inviocation of Executive Privlege is legit.

    Ultimately, if no political solution arises, a judge will have to review and decide. Until then the rest of us will stay in the dark.

  3. wr says:

    @bains: “If Fast and Furious were any of the narratives Holder (and now Obama) claim, the release of the requested documents would prove their case. ”

    That’s assuming that there is a case to make, or that Issa has any interest in making a legitimate case. It could also be that the administration believes that Issa’s sole interest is in destroying the AG, and will use any means necessary — and so decided it was time to stop cooperating.

  4. Ron Beasley says:

    It will be interesting to see what happens. The House Republicans have voted to send a contempt of Congress motion to the full House. The Republican party leaders have been trying to muzzle Issa for months – when the conversation is about Fast and Furious it’s not about the economy. Issa is a vile little attack dog who is likely to alienate Independents. But the base want’s and needs this so what’s the Speaker to do?

  5. MBunge says:

    No one’s going to care about this. Republicans have kept the outrage-valve at wide open for too long for this to have any impact.

    Mike

  6. Dazedandconfused says:

    I listened to the hearing today, and mention was made of the limited scope of the invoked privilege, to the things that Issa had already agreed were out of the scope of his previous subpoena. It was not refuted.

    I suspect this is to draw even more attention to all this, as much as anything else. Holders meeting with Issa on Monday where he demanded a promise to end contempt votes supports that. Issa would never agree to such a thing. Issa reducing the scope of his subpoena, removing the things that Holder was forbidden by law from giving, was to clean up his act in preparation for the coming spotlight.

    My sense is that the administration is saying “bring it on” as well now, and everybody wants the spotlight to shine on this. Good.

  7. Dave Schuler says:

    I think the president and the AG would be well-advised to adhere to the requirements that follow from the invocation of executive privilege expeditiously and meticulously. Using the compliance process as a delaying tactic will only keep the subject up in the air longer and raise more questions.

    IMO the White House and the AG have bungled the politics of this from the get-go. It’s been suggested here before—dump the whole 180,000 pages on the committee. Now the subject is getting more attention in the press than would otherwise be conceivable. I don’t see how that redounds to the White House’s benefit.

  8. Dave,

    As someone said earlier today, before today F&F was a story that was getting mostly limited coverage from news outlets (other than Fox). Today, the White House guaranteed that isn’t the case any more and, politically, it’s hard for a President to look good when they are withholding documents.

  9. Drew says:

    First, I want to commend Doug for this two part “tutorial” if you will. At times OTB essayists have variously fascinated, bored or infuriated me. But this is just priceless commentary for a layman.

    The various arguments will play out I guess. I’m just asking myself two questions: 1) if the two levels of privilege rely on the actual information in the documents, but you can’t get your hands on the documents, then what the hell, how does one know? And 2) and this is admittedly the political side, can anyone give me a rational response to why these documents should not be turned over other than a) criminal conduct or b) gross negligence with political consequences?

  10. legion says:

    One major problem with what Issa’s doing is that the ‘gun-walking’ actually started in the ATF under the Bush administration. Yes, it was a terrible, indefensible, possibly criminally negligent pile of crap, and yes, Obama and Holder are in line for some criticism for not stomping it into the ground the day after the inaguration, but there’s just no way to crucify them for it without also bringing a number of people from the Bush admin into the fire also. And considering the number of those people who are currently trying to ride back into the White House on Romney’s coattails, it quickly becomes apparent that Issa is a moron who has no idea what he’s doing or where his fishing expedition is going to wind up. If this seriously appears on the verge of going to some sort of public trial, Issa will wake up with a proverbial horse’s head in his bed, courtesy of his own party…

  11. legion says:

    @Doug Mataconis:

    politically, it’s hard for a President to look good when they are withholding documents.

    That never seemed to hurt GWB when he was doing pretty much the same thing. Additionally, I think the vast majority of the public are seeing this as a fight Issa picked & that Holder & Obama are just responding to – it’s playing in a lot of places as the Republicans yet again finding something to do besides work on the economy.

  12. @Dave Schuler:

    Another point. Cases like this always point out how the Attorney General’s position is always so complicated. It’s a position that is part of the Administration and answerable to the President, but he’s also supposed to be the “chief law enforcement officer of the land,” which technically puts him at odds with the Administration at times. This, I think, is why the relationship between Presidents and Attorneys General has always been complicated.

    At the state level, they get around this by making the Attorney General an independent elected official (in most states, though not all). Obviously, that wouldn’t work for the Federal Government.

  13. @Ron Beasley:

    I am far from as assured as you are that Issa is alienating the near-mythical Independents. I’d be more confident saying that this administration’s blatant, repeated contempt for the law and betrayal of the public trust has done far more to alienate them.

  14. Buzz Buzz says:

    I see that legion (and other OTB drones elsewhere) are still trying to push the “It’s a Bush program!” lie, hoping that people are too stupid to notice the difference.

    The Bush administration’s Wide Receiver operation was started in 2006 and ended in 2007. It was a joint operation coordinated with the Mexican government, who were fully aware of the program and given the responsibility for tracking and interdicting weapons once they crossed the border from the U.S. into Mexico. It did not result in the murder of any U.S. agents, Mexican civilians, or Mexican law enforcement officers.

    The Obama administration’s Fast and Furious operation was started in late 2009. Fast and Furious was executed without the Mexican government’s consent, cooperation or knowledge. Fast and Furious poured thousands of untraceable, untracked guns, grenades, and other weapons across the border into Mexico. The Fast and Furious operation resulted in the murder of U.S. agent Brian Terry and hundred of Mexican civilians and law enforcement officers.

  15. Tsar Nicholas says:

    One thing that any litigator learns, oh, say, in day No. 2 of their career, is that if you’re asserting a privilege to prevent diclosure of a document then by definition it’s a pretty f’n bad document. When documents help prove your case, and it’s important to prove your case straight away, not only do you not assert privileges over those documents you gleefully send them to the other side. Shit, with favorable documents if you could manage it you’d wallpaper your office with them and invite the other side over to look-see.

    Which brings us to the point of the eight-month delay in asserting the privilege. To which the answer as I see it is pretty simple. Team Obama knows if push comes to shove the docs will be ordered to be produced. Meaning either they’re not presidential communications and evidence a major crime or they are presidential communications and evidence an extremely severe, makes Nixon, Edwin Edwards and Blago look like choir boys crime. When combined with the delays inherent in court processes the strategy by Team Obama is to push the inevitable, court-ordered diclosure until after the November election.

    In other words, the chances that the withheld documents here are not highly incriminating, neon sign smoking guns of political death for Obama fall somewhere between zero and nada. Thing is, however, Team Obama would believe — correctly, ironically enough — that Obama would have a better chance of skating out an impeachment trial in 2013 than facing voters this November who’d be armed with the truth about this horrific scandal.

  16. @Tsar Nicholas:

    One thing that any litigator learns, oh, say, in day No. 2 of their career, is that if you’re asserting a privilege to prevent diclosure of a document then by definition it’s a pretty f’n bad document.

    That simply isn’t true and is something that is only asserted by someone who has never actually practiced law.

    There numerous reasons to validly assert the various privileges granted by law that have nothing to do with hiding a document that is detrimental to one’s case. Indeed, there are some privileges, such as the attorney-client privilege, for which one has an ethical duty not to disclose a document regardless of whether or not it is helpful to the case.

    Privileges exist in the law for good reasons, and there are good reasons for legitimate invocations of Executive Privilege as well. The assertion that the only reason one asserts a privilege is because you have something to hide is as irresponsible and inaccurate a statement as saying that the only reason one exercise’s ones right to remain silent under the 5th Amendment is because you’re guilty.

  17. And what an interesting coincidence that all this is impacting on the 40th anniversary of the June 20, 1972 conversation between President Nixon and Bob Haldeman, later to be found with an infamous 18.5 minute deletion in the recording.

  18. Allan,

    I’m pretty sure you’re the only person who’s picked up on that coincidence, not even our vaunted media has brought it up.

    Nice work!

  19. bains says:

    legion: One major problem with what Issa’s doing is that the ‘gun-walking’ actually started in the ATF under the Bush administration.

    As I started off this comment thread with, if that is in fact the case, why not release the documents to prove it? Without those documents, all you are left with is MSNBC et al disseminating ‘truth’.

  20. jukeboxgrad says:

    buzz:

    It was a joint operation coordinated with the Mexican government

    This talking point comes up a lot even though it seems to be false:

    No evidence of Mexico cooperation in Tucson ATF probe … There seems to be an emerging talking point related to the Operation Fast and Furious scandal that “The Bush administration did it too, but they did it right by working with Mexico.” … From what I’ve seen so far, that’s not true.

  21. jan says:

    @Buzz Buzz:

    I remember reading somewhere, as well, that the Wide Receiver Program, under Bush, involved far fewer weapons and operational scope than the F & F under Holder and Obama. Obviously, though, these were both ill-conceived programs, no matter who they were under. However, to continue to buffer the blow, from any errors made under the Obama administration, by throwing it back to the Bush administration, is like saying two wrongs somehow make a right.

    What people are asking now, because of this executive privilege being issued today, are questions: mainly did the President authorize this act? Or, did Eric Holder commit perjury by his statements to Congress?

  22. First thing that popped into my mind when I heard “executive privilege” was “Holy crap, it’s June 20th”. Sad, but true.

  23. jan says:

    @bains:

    “As I started of this comment thread with, if that is in fact the case, why not release the documents to prove it? Without those documents, all you are left with is MSNBC et al disseminating ‘truth’. “

    That just makes too much sense —> releasing documents because you have nothing to hide, and said release will simply prove that.

  24. legion says:

    @Buzz Buzz: Nice try, but no soap. I specifically used the term “gun walking” because it’s (I believe) the ATF’s own term for the process used in both the WR and F&F programs. While the scale was smaller, the idea that it was somehow done “right” under the Bush administration and “wrong” under Obama is… disputable at best. And you’ll note that I made no bones about criticizing the entire concept, regardless of who rant it – it was a reprehensible, doomed idea from the get-go. But that’s not the point I was trying to make.

    I honestly don’t know enough about the fine details of what Issa asked for vs. what he’s actually entitled to to really critique the legal side of the contempt vote – as Doug expertly points out, there are quite legitimate reasons for not giving the other side everything they want, even if it’s not damaging to you. My personal suspicion is that there are still a lot of Bush admin names connected to this stuff, and I really think he’s going to get slapped down behind the scenes by his own people for this – I don’t see it actually going to an impeachment hearing.

  25. bains says:

    legion: I honestly don’t know enough about the fine details

    Too rich to ignore.

  26. Jenos Idanian #13 says:

    @legion: One major problem with what Issa’s doing is that the ‘gun-walking’ actually started in the ATF under the Bush administration. Yes, it was a terrible, indefensible, possibly criminally negligent pile of crap, and yes, Obama and Holder are in line for some criticism for not stomping it into the ground the day after the inaguration, but there’s just no way to crucify them for it without also bringing a number of people from the Bush admin into the fire also.

    Two words: Bull and shit.

    Yes, Linebacker was under Bush. But not one gun ever got into Mexico. Even so, the Bush administration saw it was too dangerous and pulled the plug.

    The Obama administration dusted off the plan, took out the safety measures the Bush administration used, and started it up again. And somehow no one foresaw it blowing up.

    As I said before, imagine the Titanic designers reconsidering things after the ship sank. “OK, the iceberg ripped a big hole in the side. So we just won’t put a side on it, so there won’t be a risk of another iceberg tearing it open!”

  27. jukeboxgrad says:

    jenos:

    Yes, Linebacker was under Bush. But not one gun ever got into Mexico.

    Wow, what a surprise. Another day, and another set of bogus claims from Jenos.

    For some strange reason, various people think the name was “Linebacker.” No, that’s not the name. And plenty of guns “got into Mexico.”

    Link:

    Dubbed Operation Wide Receiver, the case was run out of Tucson between 2006 and 2007 and involved hundreds of guns that were purchased by small-time buyers who transferred them to middle men who then passed them up the chain and into Mexico.

    Link:

    The vast majority of the guns were never recovered by U.S. authorities.

    Link:

    the memo suggests that it was “highly unlikely,” due to the limited recovery of firearms, that weapons had not already entered gun trafficking conduits to Mexico.

    The bullshitter is you.

  28. PD Shaw says:

    Well this is actually the first day that I’ve paid attention to this story, so please feel to correct me if I’m wrong, but as I see it there are three time-frames at work:

    1. Bad stuff going on in Operation Fast & Furious.
    2. Whistle-blowers point out crazy stuff going on, various investigations ensue, culminating in letter of February 4, 2011 to Congress from DOJ, denying that it sanctioned the operation.
    3. Criticisms arise, causing DOJ to withdraw the 2/4/11 letter as inaccurate in December of 2011.

    As I understand it, the document dispute involves the third time frame. I think its highly credible that Obama was not aware of the first time frame; he lacks omniscience and it doesn’t sound like a Presidential ordered project. He doesn’t know if your postman is a jerk.

    During the second period — responding to Congress, it sounds like a White House concern, but may or may not be at the Presidential level of concern. Congressional oversight is part of the day-to-day. A.G. incompetence more likely here.

    However, the blowback in the third period from possibly making false statements to Congress is, or at least should be, of the highest Presidential concern. We may need to withdraw a letter to Congress? Damn straight Obama should be involved at this point.

    I think this leads to a difficult set of issues. On the one hand, the President should be able to figure out what the heck happened unfettered by the threat that such inquiry would have to be given to Congress. On the other hand, once lied to, Congress, as part of its legitimate oversight functions, be able to investigate threats to its ability to conduct oversight.

    Am I missing something?

  29. JakesForLuck says:

    I am also curious to see this play out. Having read some of the comments on this site, I’m not sure what referencing Bush has to do with an administration in its fourth year. I don’t think anyone would try to make the case that Bush was a great president, but when I see people instantly turn every argument against a democrat, back to what a former republican president did, I feel our political orientations maybe preventing us from looking at things objectively. This use of executive privilege may be right, it may be wrong, but I’m quite sure Bush has zero relevance.

  30. jukeboxgrad says:

    not one gun ever got into Mexico

    And maybe the message will have a better chance at reaching you if you read about it at townhall.com:

    The Wide Receiver investigation that began in early 2006 proceeded and used the gun-walking tactic despite the concerns expressed by some of the law enforcement personnel involved in it.

    “I am no longer comfortable allowing additional firearms to `walk,’ without a more defined purpose,” a supervisor for the Bureau of Alcohol, Tobacco, Firearms and Explosives in Arizona wrote in a June 2007 email to a federal law enforcement official in Texas about Operation Wide Receiver.

    “I think it is wrong for us to allow 100s of guns to go into Mexico to drug people knowing that is where they are going,” Assistant U.S. Attorney Serra Tsethlikai wrote in a Dec. 19, 2008, email to another assistant U.S. attorney.

    Early in the investigation, prosecutors had enough to charge suspects who had been converting firearms into machine guns, but law enforcement officials decided to wait, according to emails by personnel at ATF.

    “We believe at this point there is more value in the surveillance, identification of locations, persons, vehicles,” an ATF supervisor wrote in a June 15, 2006, email. An ATF briefing paper on Wide Receiver in August 2006 said the weapons involved in the investigation probably had ended up as “illegally trafficked firearms to Mexico.”

  31. Dazedandconfused says:

    @PD Shaw:

    I don’t think they intended to lie. The news was met with incredulity, which is understandable given the incredible level of stupid involved. The story on the memo is that they asked the Phoenix offices and when they said “no” they crafted a letter saying the same to Congress. This is sloppy work, and I can understand why many believe it evidence of a cover up.

    I don’t. Mainly because I see no reason for Holder to be in league with the Cartels, and because all the agents whistle-blowers were of the opinion that this duck was hatched at the field office level, aping the previous programs to a degree, but with an extra-big, juicy helping of silly on top.

  32. jukeboxgrad says:

    not one gun ever got into Mexico

    And the best part is that Issa’s own spokesman admitted that this claim is false:

    In contrast to Operation Fast and Furious, where Mexican authorities were deliberately kept in the dark, this operation was conducted in coordination with Mexican authorities and when supervisors discovered problems that resulted in the loss of a dozen weapons they moved to shut down the effort

    There’s lots of dishonesty in that statement, but he knows he can’t get away with making the outrageously false claim you made.

  33. Jenos Idanian #13 says:

    @jukeboxgrad: So, Wide Receiver — NOT Linebacker (once again sports trips me up) was even more screwed up than I had read. No problem.

    Then you wanna explain why the frack the Obama administration dusted it off and tried again, but without even the minimal protections that the Bush administration used?

    By your own sources, Wide Receiver involved “hundreds” of guns, “the vast majority” were never recovered. Fast and Furious involved THOUSANDS of guns, NONE of which were recovered except by accident.

    And Fast and Furious had absolutely NO plan to recover the guns. Wide Receiver might have had a bad one, but it at least caught some. Fast and Furious? Not one, except those recovered from crime scenes.

  34. jukeboxgrad says:

    So, Wide Receiver … was even more screwed up than I had read

    Here’s a suggestion: try reading something other than the usually righty blogs. Because they’ve been making the same false claim you made. What a surprise. An example of Ed Morrisey telling the same lie can be seen via here.

    No problem.

    Actually, there is a problem. You said this:

    Two words: Bull and shit.

    You need to apologize for saying that, because the bullshitter was you.

    Fast and Furious had absolutely NO plan to recover the guns. Wide Receiver might have had a bad one, but it at least caught some.

    Show us the proof for those claims.

    Anyway, the real issue here is that lots of people (two good examples are Issa and you) are trying hard to pretend that this problem started on 1/20/09. So this is yet another nice example of what John Stewart calls “galling Republican forgetfulness a/k/a Ballzheimer’s,” and what I call the standard Republican practice of combining chutzpah and amnesia.

  35. Jenos Idanian #13 says:

    @jukeboxgrad: First up, no apologies to you. You put yourself out as some above-it-all fact-checker, but you NEVER seem to fact-check anyone from the left. And you never seem interested in advancing discussion, but shutting it down when it gets awkward for your side.

    I said there was no plan for recovering the guns once they got into Mexico, and you ask me to prove it. Yeah, genius, you actually expect me to prove a negative? Here’s how you can prove me wrong — show me where in the statements so far there was even the slightest concrete plan for tracking and recovering the guns. We have statements on how the guns were bought and sold. How they were delivered to cartel agents. How they were then allowed to cross the border. Hell, we even have statements how the feds intervened to push the sales through, fronted money, and aided in the border crossings in some case.

    What we’re lacking is anyone talking about the plan to track and recover the guns once they crossed the border. That’s the classic Holmesian dog that didn’t bark in the night.

    The facts are this: Wide Receiver started AND ENDED under Bush. Fast and Furious STARTED under Obama. There was NO continuity between the two. One did not “evolve” into the other; the latter was a really, really shitty copy of the former, which was already a dismal failure.

    And you’re citing Media Matters as a “reputable” source? No, thanks. I’d almost trust Democratic Underground before those people.

    It’s really remarkable at the convolutions you’ll engage in and the lengths you’ll go to when you’re avoiding the actual topic at hand.

    And don’t you have a convicted terrorist and perjurer to stick up for? Things are getting grim for BK, and he could use all the friends he can get.

  36. jukeboxgrad says:

    no apologies to you

    I didn’t say you needed to apologize to me. I said you needed to apologize. And that’s still true.

    Yeah, genius, you actually expect me to prove a negative?

    I’ve already mentioned this to you, but it’s still not sinking in: don’t make claims you can’t prove.

    Here’s how you can prove me wrong

    I’ve already mentioned this to you, but it’s still not sinking in: you’re the one who made the claim, so the burden of proof is on you, not me.

    There was NO continuity between the two.

    More bullshit from a brazen, incorrigible bullshitter. Newell played a major role in both operations. Do you even know who he is?

    And you’re citing Media Matters as a “reputable” source?

    I cited them because they host a recording of Ed Morrisey telling the same lie you told. Did you listen to it?

    Things are getting grim for BK

    I understand how desperate you are to change the subject.

  37. JKB says:

    Well, there’s a lot of nuance here as Doug has elucidated. But few will go that deep. The juxtaposition with the Watergate anniversary makes for a bad association. The MSM may not make that association for themselves but they’ve also had to scrap their “remember Watergate” 40th anniversary stories.

    But the details of this are bad optics for Obama. The documents they are asserting privilege over are internal deliberations regarding responding to Congressional inquiry. A response since proven to have quite a few material errors, possibly, intentional misrepresentations. So they are invoking privilege to forestall Congress from assessing for themselves whether the errors were due to bad reports from subordinates as claimed or a calculated attempt to deceive Congress in their Constitutional duty of agency oversight. That’s bad optics and would be major scandal if this was a Republican administration.

  38. wr says:

    @Jenos Idanian #13: “Yes, Linebacker was under Bush. But not one gun ever got into Mexico. Even so, the Bush administration saw it was too dangerous and pulled the plug.”

    And you know this how exactly? This piece of crucial information that has appeared exactly nowhere? You were working deep inside the Bush administration, perhaps? You have the ability to read Karl Rove’s mind?

    Or wait — how about this: You made it up.

    Yeah, that sounds right.

  39. wr says:

    @Jenos Idanian #13: “So, Wide Receiver — NOT Linebacker (once again sports trips me up) was even more screwed up than I had read. No problem. Then you wanna explain why the frack the Obama administration dusted it off and tried again, but without even the minimal protections that the Bush administration used? ”

    Shorter Jenos: “Sure, every claim I made in my last post was a lie. But that just proves I was telling the truth!”

  40. jan says:

    @JKB:

    Some relevant observations, JKB. The timing with the Watergate 40th anniversary is beyond terrible. It’s like another evil twin arising from the dirty laundry of government. With a less than stellar economy all around him, tales of leaks, bad ‘green’ investments and claims of crony capitalism elbowing him, Obama is on the defensive. As you aptly stated, The ‘optics’ are just not good for Obama.

    Also, a legal opinion, rendered by the Powerline Blog, has an interesting assessment: Obama’s claim of executive privilege: It’s frivolous.

  41. Scott O. says:

    Here’s another interesting opinion from Powerline blog, “Birtherism,” RIP. I guess even Mr. Hindraker can have an off day.

  42. legion says:

    @Jenos Idanian #13:

    There was NO continuity between the two.

    Two words that might sound familiar to you: Bull and Sh*t. Not only do you have absolutely no evidence of this, I can come up with a highly plausible argument against:

    Since both programs appear to have been initiated from within ATF, it is highly probable – very nearly a certainty – that the driver behind both programs was a single, high-ranked and/or very connected civil service person inside ATF… maybe a GS-15 or SES. That’s the only plausible source that would stay in a position of authority during both the Bush and Obama administrations, and the only reason such a roundly criticized (even within the ATF) plan would be resurrected.

    I mean, think about it – what conceivable reason would any Obama appointee have to re-start a crap program that had already failed before? Only someone who considered it their “pet project”. And that could only be a career civil servant who was able to stay in their position across administrations, and also get the sign-off of senior officials in both administrations – that’s where the political landmine sits.

    Nobody is arguing that F&F was anything other than a terrible idea – it was incredibly irresponsible and may very well have resulted in numerous deaths, including that of a federal agent. But the _exact_ same potential was there in Wide Receiver. And if Issa wants to hang somebody for F&F, there’s a very real possibility it may implicate people in W’s administration. People who are still trying to have careers. And they’re going to come a’knocking on Issa’s door…

  43. jukeboxgrad says:

    I guess even Mr. Hindraker can have an off day.

    Yes, I love this part:

    The mystery has always been, why was Obama so reluctant to release his long-form birth certificate? There have been two possible explanations: 1) the birth certificate contains some embarrassing information that Obama would prefer not to make public; or 2) he thought the “birther” controversy was hurting Republicans, and therefore wanted to keep it going.

    Even Hinderaker did not dare to imagine just how diabolical Obama really was. All along, his goal was “to keep it going.” And that’s why he finally decided to release his birth certificate, again: because he knew, even though Hinderaker did not, that this would be a great way “to keep it going.” Hinderaker’s only mistake was to not fully grasp the depth of Obama’s evil scheme.

    And speaking of “Birtherism RIP,” this is what I said at the time (the same day Hinderaker made that foolish prediction):

    … the door has now been opened to a whole new era of birtherism. Birtherism is dead. Long live birtherism.

    Yup.

  44. JKB says:

    @legion:

    That’s nice but if they could hang this on the Bush administration, it would already be swinging.

    In any case, this “executive privilege” was invoked to impede the investigation into the “demonstrably false” letter sent by DOJ to Congress sent in Feb 2010. And to investigate the retaliation against whistleblower witnesses by the Obama Administration.

    As they say, it’s not the crime, it’s the cover up. And the cover up has been all Obama/Holder.

  45. legion says:

    @JKB:

    That’s nice but if they could hang this on the Bush administration, it would already be swinging.

    I wouldn’t be so quick to go there… the Obama admin has already gone quite far in protecting the Bushies from some of their more egregious violations involving Gitmo, extraordinary rendition, torture, etc. Mainly, I assume, because they want to keep using those same powers themselves, and setting a precedent of not hauling the last administration’s criminals into court might just protect them too someday…