Ted Rall: Executive Privilege is a Lie Handed Down!

Presidents of both parties have asserted that the constitutional separation of powers grants the executive branch an "inherent" right to ignore subpoenas issued by Congress or the judiciary through "executive privilege." The standard argument is that compliance would reveal the internal deliberations of the president, his Cabinet officers, and other government officials who require the presumption of privacy in order to engage in internal debates and deliberations. The ongoing "Fast and Furious" debacle is President Obama's first use of "executive privilege" to avoid such subpoenas, but both by historical and current legal standards, the continued use of the tool is a radical overreach. I put "executive privilege" in quotes because, like terms such as "enemy combatant," it does not appear in law. The closest we have to a definite word on executive privilege dates to the Watergate scandal, when the US Supreme Court ruled against Richard Nixon's attempt to stonewall Congress. As long as a prosecutor could argue that the relevant documents were essential to the justice of a case, and did not compromise national security, Chief Justice Warren Burger said, the president would have to fork over the documents. Operation Fast and Furious, a law enforcement matter, doesn't qualify under the Burger ruling. Yet, it's hard to imagine making a credible case that national security would be compromised if the details were made public. Since run-of-the-mill Bureau of Alcohol, Tobacco, Firearms and Explosives memos would be covered, the usual top-level internal deliberations justification doesn't apply either. Once again, Obama is following precedent established by George W Bush, whose legal advisers seem to have missed the class about how Americans decided not to be ruled by a King.