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Obama Invokes Executive Privilege in Congressional Investigation

Chairman Darrell Issa, adjourns a meeting of the House Oversight and Government Reform Committee, after a committee vote to hold Attorney General Eric Holder in contempt of Congress, on Capitol Hill, June 20, 2012 (AP).
Chairman Darrell Issa, adjourns a meeting of the House Oversight and Government Reform Committee, after a committee vote to hold Attorney General Eric Holder in contempt of Congress, on Capitol Hill, June 20, 2012 (AP).
WHITE HOUSE - For the first time, President Barack Obama has invoked executive privilege, a power used by the Executive Branch of the U.S. government to deny requests for documents or reject subpoenas to compel testimony by senior officials. Mr. Obama acted before a congressional committee voted along party lines to cite the U.S. attorney general for contempt.

Executive Privilege

Executive Privilege:

-Executive Privilege is the right claimed by the U.S. president and other officials of the executive branch of the U.S. government to withhold from Congress, the courts or people information that has been requested or subpoenaed.

-Executive privilege also can be invoked to prevent executive branch officials or employees from testifying in U.S. congressional hearings.

-Presidents have exercised executive privilege in cases that involve national security and those that involve executive branch communications.

-Presidents most often claim executive privilege to protect sensitive military or diplomatic information.

-The right of executive privilege is not directly granted to the president in the Constitution. Instead, it has historically been considered a right implied by the constitutional principal of separation of powers between the three branches of the U.S. government: executive, legislative, judicial.
President Obama invoked the rarely-used power in response to a request from Attorney General Eric Holder, who is involved in an 18 month investigation into "Fast and Furious" - a failed sting operation in which U.S. authorities permitted some 2,000 guns originating in the United States to flow into Mexico as part of efforts to identify and dismantle arms trafficking networks.

"Gun-walking," as it is known, is prohibited under Department of Justice rules, but was used on a trial basis during the administration of former President George W. Bush.

Two of the weapons later were found to have been used in the shooting death of a U.S. border patrol agent.

Holder, who heads the Department of Justice, turned over more than 7,000 documents to lawmakers and wanted assurances that additional information he might supply would satisfy a subpoena from the House of Representatives Committee on Oversight and Government Reform.

Holder and Republican Committee Chairman Darrell Issa failed to reach a compromise. The committee voted 23 to 17 to cite Holder for contempt, but not before a heated debate erupted between Democrats and Republicans.

Representative Trey Gowdy is a South Carolina Republican. Jackie Speier is a Democratic Representative from California.

GOWDY: "The notion that you can withhold information and documents from Congress no matter whether you are the party in power or not in power is wrong. Respect for the rule of law must mean something, irrespective of the vicissitudes of political cycles."

SPEIER: "I want to apologize to the American people for yet another show of 'gotcha politics' [the politics of catching someone doing something wrong] in this body."

After the committee vote, Attorney General Holder accused Chairman Issa of an "election year tactic" and rejecting efforts to reach a "reasonable accommodation." He said Issa chose "to use his authority to take an extraordinary, unprecedented and entirely unnecessary action intended to provoke an avoidable conflict between Congress and the Executive Branch."

Ruth Wedgwood is a professor of law at The Johns Hopkins University and a former federal prosecutor in the southern district of New York. She says executive privilege confrontations involve concerns about the potential "boundless" use of presidential powers, and involve intense maneuvering between the White House and Congress.

"There was concern that any White House intervention in the case could politicize what should be a principled, policy-based law enforcement judgment," said Wedgwood. "But with the Congress, I think, it is usually a fight for who has predominant power, who has the real oversight capability. There is a long history of the Department of Justice resisting attempts by the Congress to investigate particular cases, sometimes for fear that political interference would come from that quarter as well."

Wedgwood calls executive privilege a "quasi-Constitutional claim, a difficult area in which courts almost never become involved" and parties fight out issues through a "war of letters and press releases." She says she is surprised that the confrontation between Holder and the White House, and the Republican-controlled House Oversight Committee reached a stalemate.

"Usually, these things are worked out in practical ways, where you make House, congressional personnel come to the Department of Justice to see things, that they can read but not take notes, that they can't have photocopies and are therefore guarding against leaks, or having closed executive sessions where people testify or make these documents available up on the Hill, but in circumstances where they can't become public," she said.

Analyst Stephen Hess of the Washington-based Brookings Institution says the struggle over information detailing decisions in the "Fast and Furious" program is predictable in a presidential election year.

"There are other cases right now that are bubbling up that could produce a congressional request for documents - whether it has to do with the cyber wars in Iran, or whether it has to do with drones or so forth, which could come forth in which executive privilege would again be called for," said Hess.

The vote to hold Attorney General Holder in contempt sends the issue to the full Republican-controlled House of Representatives for a vote. The House leadership is not required to bring it to a vote.

The U.S. Constitution does not specifically refer to the right of a president to claim executive privilege, but legal precedent for use of the power has been established by Supreme Court cases.

In 1974, the high court ruled against President Richard Nixon who argued that tape recordings from the Watergate scandal should not be turned over to congressional investigators.