There has been much talk today about Obama's use of the "executive privilege" yet few are familiar with the details of this relatively unknown presidential option. The AP sheds much needed light on this practice: perhaps the most fitting, to the constitutional expert president, is that the "privilege" isn't in the Constitution nor has been clearly defined by the courts. In other words - just the kind of loophole that one needs to mask the fact that the very person tasked with imposing justice is himself guilty of performing just the opposite. Yet Obama has only used it once (so far) during his tenure as president. Dubya used it six times, Bush Sr used it once also. Slick Willie however takes the cake with 14 cases of executive privilege during his 8 years on top.
Presidents dating back to George Washington have claimed a murky power to keep the inner workings of their administrations secret from Congress.
That authority — known as executive privilege — isn't in the Constitution. It hasn't been clearly defined by the courts. Yet invoking it has proven effective for presidents determined to keep witnesses or documents away from congressional investigators.
President Barack Obama is the latest to assert the privilege: He refused Wednesday to turn over some Justice Department documents about a botched anti-smuggling operation that allowed hundreds of guns sold in Arizona to end up in Mexico. Because of the standoff, the House Government Oversight and Reform Committee then voted to hold Attorney General Eric Holder in contempt of Congress. The committee's recommendation next would go to the full House for a vote.
A look, in question and answer form, at executive privilege and the fuzzy state of the law regarding showdowns between Congress and a president:
Q: How can a president shrug off a subpoena from a congressional committee?
A: Presidents say they should be free to engage in private decision-making with their advisers without fearing how their words or internal memos might look to Congress or the public. Several presidents have argued that this authority also extends to the work of high-level agency officials, even if they weren't communicating with the president or White House about such work.
Q: Where does the idea of executive privilege come from?
A: It's a principle based on the constitutionally mandated separation of powers — the idea that the executive branch, Congress and the courts operate independently of each other.
The concept of executive privilege dates at least to 1792, when Congress was probing a disastrous battle against American Indians that cost the lives of hundreds of U.S. soldiers. President George Washington and his Cabinet decided the president had the right to refuse to turn over some documents if disclosing them would harm the public. In the end, Washington gave lawmakers what they sought. But the idea of executive privilege took root.
Q: Didn't the Supreme Court settle the issue when it ordered President Richard Nixon to hand over the Watergate tapes recorded in the White House?
A: Not really. The court ordered Nixon to surrender the tapes in that case — a criminal investigation. But the justices also found a constitutional basis for claims of executive privilege, leaving the door open for presidents to cite it in future clashes with Congress.
Q: Do presidents claim executive privilege often?
A: Most reach for it sparingly. Wednesday was Obama's first time in his 3 1/2 years in office. His predecessor, George W. Bush, cited it six times in eight years. Bush's father invoked it only once in his single term.
The administration of President Bill Clinton, who faced investigation of his Whitewater land deals and then a sex-and-lies scandal, asserted executive privilege 14 times. Some of those claims were kept quiet and quickly dropped, however.
Q: What comes next for Obama?
A: Probably more negotiation. In the past, presidents and lawmakers have been loath to let an executive privilege fight escalate into a court battle.
Q: Why not go to court to settle questions about executive privilege once and for all?
A: There's too much risk. Presidents worry that if they lose, courts will take away a valuable tool and weaken the power of the office. If the lawmakers lose, they could permanently weaken Congress' subpoena power when it investigates executive branch blunders.
Q: What if the White House and Congress can't reach a compromise?
A: The next step is a contempt of Congress vote in the full Republican-controlled House. Full House approval would send the case to the local U.S. attorney for enforcement. Who is that U.S. attorney's boss? Holder and, ultimately, Obama, who appointed him.
That's why the Justice Department traditionally declines to pursue such criminal contempt of Congress cases.
Q: Is there something else Congress could do?
A: If, as history suggests, the Justice Department won't prosecute a criminal case against Holder, the House could hire its own lawyer and file a civil lawsuit in federal court in hopes of winning an order for Holder to turn over the documents. But in addition to the risk of losing, a court fight certainly would be long and drawn out, making that an unappealing option.
The Democratic-controlled House filed suit in 2008 seeking to compel testimony from a former White House counsel to George W. Bush. The lawsuit was dropped a year and a half later, after Bush's term ended and a newly elected Congress had been seated. Congress did get some of the documents it sought, however.