Barack Obama said as a candidate that former president George W. Bush abused executive privilege to shield his GOP administration from embarrassment. On Wednesday, however, Obama invoked the privilege to stymie a congressional investigation into a gunrunning scandal that left a Border Patrol agent dead.
“There's been a tendency on the part of this administration to—to try to hide behind executive privilege every time there's something a little shaky that's taking place,” Obama told CNN in 2007. “And I think, you know, the administration would be best served by coming clean on this. There doesn't seem to be any national security issues involved with the U.S. attorney question.”
Obama backed efforts to bring contempt charges against Bush adviser Karl Rove, as well as subpoenas to obtain documents from the Department of Justice pertaining to the firing of several U.S. attorneys. He has not been as forthcoming with his own DOJ.
On Tuesday Rep. Darrell Issa (R., Ca), chairman of the House Committee on Oversight and Government Reform, blasted Attorney General Eric Holder for failing to cooperate with an investigation into the scandal and moved closer to holding him in contempt of Congress.
The Obama administration invoked executive privilege on Wednesday to protect Holder from the fallout of the Operation Fast and Furious scandal in which ATF agents allowed automatic weapons to cross the border into the hands of Mexican drug cartels. One of those guns was later used to kill Border Patrol agent Brian Terry.
Holder asked the administration to issue the order, saying the Congress’s “demand for internal documents” raised “significant confidentiality and separation of powers concerns.”
Deputy Attorney General James Cole fulfilled that request and informed Issa that the administration would not be complying with further requests for documents.
Disclosure would “inhibit the candor of such Executive Branch deliberations in the future and significantly impair the Executive Branch’s ability to respond independently and effectively to congressional oversight,” Cole wrote.
Executive privilege allows the White House to withhold documents pertaining to administration activities, raising questions about whether the president himself knew of the operation. Obama has claimed that he learned of the program after a whistleblower divulged the failed operation in 2010.
"How can the president exert executive privilege over documents he's supposedly never seen?" Sen. Charles Grassley (R., Iowa) asked.
Administration officials justified the order on the grounds that White House officials spoke to Holder about the controversy itself.
Democrats on the oversight committee rallied behind the president on Wednesday.
“I am horrified that you are going forward with this contempt charge when the president of the United States and the administration have invoked executive privilege for the documents sought by the chairman,” Rep. Carolyn Maloney (D., NY) said. “The attorney general is being attacked for protecting documents that he is prohibited by law from producing.”
However, Maloney was not so shy about attacking the Bush administration for protecting state secrets through executive order. In 2006, the New York Times revealed that the Bush administration was monitoring bank activities to cut down on terrorist funding without congressional approval. Maloney slammed Bush for claiming that the doctrine of protecting “state secrets” allowed him to not share details of the program with Congress.
“The Administration has kept us in the dark,” she said. “The majority [Republicans] were in a big rush last week to pass a resolution asserting that the program is legal and that it has made significant contributions to the fight against terrorism. I hope that is true. But since we haven’t been told about this program, I don’t see how any Member can be sure.”
Maloney is not the only Democrat to reinterpret her understanding of state secrets and executive privilege now that Obama is in power. Vice President Joe Biden led the call to hold Karl Rove and former White House Chief of Staff Josh Bolten in contempt for not supplying documents to the Senate Judiciary Committee.
“Executive privilege protects certain communications between the President and his top advisers. It doesn’t shield criminal conduct, it can’t thwart Congress’ constitutional oversight responsibility, and, contrary to the President’s belief, it’s not an absolute, blanket protection from answering Congress’ questions,” he said in 2007.
The Democratic efforts to charge Rove and Bolten proved unsuccessful. House Republicans have vowed to continue to pursue contempt charges against Holder.
"This untimely assertion by the Justice Department falls short of any reason to delay today's proceedings," Issa said.