How The Right's Executive Privilege Mix-Up Turned Obama Into "An Accessory To Murder"

Blog ››› ››› MATT GERTZ

Joseph FarahIn his latest column, WND editor Joseph Farah takes the right-wing media's misreading of President Obama's declaration of executive privilege with regard to some documents concerning the ATF's failed Operation Fast and Furious sought by congressional Republicans to its "logical" conclusion: President Obama has declared himself, "quite possibly, an accessory to murder." From the piece:

Now understand what this means. Obama cannot claim executive privilege for any member of his administration. He can only do so for himself and his inner circle of advisers, and should never do so unless it's a matter of national security.

What Obama did, in apparent desperation, was to expose his own personal complicity in this scandal, making him, quite possibly, an accessory to murder.

Can you imagine how big this scandal is and how far it reaches for the administration to take such a gamble?

Farah's point appears to be that by claiming executive privilege for these documents, Obama has acknowledged personal involvement in the authorization of Fast and Furious, and thus, since guns trafficked to Mexico through that program were used to kill people, he could be an "accessory" to those murders.

This doesn't make any sense.

First of all, the documents in question don't deal with the authorization of Operation Fast and Furious, but rather the administration's response to congressional inquiries in response to that operation. Even if Obama was directly involved in that response, it would in no way indicate his "personal complicity in" the operation.

But the administration has not claimed executive privilege on the basis of the president's personal involvement. Which brings us to another problem with Farah's column: his statement that "Obama cannot claim executive privilege for any member of his administration" is simply not true.

As Ohio State University law professor Peter Shane wrote at CNN.com this morning, the Obama administration has claimed deliberative privilege with regard to the documents in question, which "aims to protect documents generated anywhere in the executive branch that embody only the executive's internal deliberations, not final policy decisions."

Shane explains:

Deliberative privilege is not a legal absolute. The executive branch concedes that when another branch of government demands privileged documents within the executive's control, they sometimes have to be turned over.

They have to be turned over when the demanding branch can articulate a compelling need for the information to fulfill one of its own constitutional functions -- a need that outweighs the executive branch's interest in confidentiality.

A key problem now for the House Oversight Committee is thus far it has yet to state in a very concrete way why it needs the particular documents it is demanding.

In contrast, the executive branch has articulated a strong and highly specific reason for withholding the documents at issue: Forced disclosure to Congress of internal deliberations concerning how best to interact with Congress would undermine the executive's capacity to function as a co-equal branch. It would undermine the prospects for future candid deliberations about interactions with the other institutions of government

Since Obama has cited deliberative privilege, he has not "expose[d]" any sort of "personal complicity" with regard to the documents in question, as Farah claims. Obama's claim is in line with claims the Bush administration made with regard to internal Justice Department and Environmental Protection Agency documents.

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