Fox News' Comedy Of Executive Privilege Errors
Written by Timothy Johnson
Published
Since President Obama's assertion of executive privilege over a set of internal Department of Justice (DOJ) documents, Fox News “straight news” anchors have repeatedly suggested that the president is attempting to “have it both ways” by invoking the privilege while also maintaining his longstanding position that he was not involved in the authorization or management of the failed ATF Fast and Furious operation. At times they have continued to do so even after their colleagues have informed them that these positions are not inconsistent.
Both Gregg Jarrett and Jamie Colby, the guest hosts of Happening Now and America's Newsroom, respectively, have pushed this baseless idea - echoing GOP talking points - during this week's broadcasts. Although Colby and Jarrett have been corrected by their colleagues on-air for their mistaken claims, Jarrett's revival of the specious claim during yesterday's show demonstrates that the idea that Obama's routine use of executive privilege evidences something sinister is alive and well at Fox News.
From the June 25 edition of Fox News' Happening Now:
JARRETT: The president is on record as having said all along knew nothing about it, didn't deal with it, wasn't involved. And all of a sudden the president invokes executive privilege which suggests that there was some White House involvement. You can't have it both ways, can you?
From the June 26 edition of America's Newsroom:
COLBY: Can the president have it both ways, say that the White House had nothing to do with the Fast and Furious program, and at the same time exert executive privilege over documents that dealt with, as [White House press secretary] Jay Carney had said, the operation?
Jarrett aired out his idea about Obama even after he had been corrected by Fox News White House correspondent Ed Henry for making similar claims during the June 20 edition of Happening Now. During that show, Henry told Jarrett in plain terms that Obama's use of executive privilege “does not prove any sort of cover-up and it does not prove that the president was involved in Fast and Furious.”
Colby was corrected in a more immediate fashion by conservative The Five co-host Andrea Tantaros who stated, “I will say this though, in fairness, the president does have a right to exert executive privilege in a deliberate process. In the [U.S. v.] Nixon ruling it said that it doesn't have to include the president or his advisors. It could include a decision that eventually will affect the president. Recommendations, deliberations, that kind of thing.”
The corrections of Henry and Tantaros echo what has been said by law professor Peter Shane who is an expert on the separation of powers. In a June 21 column for CNN, Shane wrote that executive privilege routinely encompasses “documents generated anywhere in the executive branch,” not just documents produced by the White House. Indeed, Obama is not the first to assert executive privilege over documents produced by his executive branch agencies; President Bush shielded internal DOJ documents in 2001.
While there is no factual basis for Fox's executive privilege narrative, it is not as if the idea appeared out of thin air. The commentary of Jarrett and Colby actually bears a striking resemblance to the talking points of the Republican congressmen directly involved in the dispute with Attorney General Eric Holder and the Justice Department.
Within hours of the president's June 20 assertion, Sen. Chuck Grassley (R-IA), who has been Holder's primary antagonist in the Senate, issued a statement asking, “How can the president assert executive privilege if there was no White House involvement?”
Speaker of the House John Boehner (R-OH) stated, “The White House decision to invoke executive privilege implies that White House officials were either involved in the 'Fast and Furious' operation or the cover-up that followed. The Administration has always insisted that wasn't the case. Were they lying, or are they now bending the law to hide the truth?”
Last night House Oversight Chairman Darrell Issa (R-CA) closed the Fox News/GOP messaging loop, issuing a letter to Obama that declared, “Your privilege assertion means one of two things. Either you or your most senior advisors were involved in managing Operation Fast & Furious and the fallout from it, including the false February 4, 2011 letter provided by the Attorney General to the [House Oversight] Committee, or, you are asserting a Presidential power that you know to be unjustified solely for the purpose of further obstructing a congressional investigation.” The day before, Issa had stated that no evidence existed to implicate the White House in a cover-up.