Power Grab - Jason Chaffetz Page 0,55
(ATF) program that allegedly facilitated the flow of thousands of weapons to drug cartels across the U.S.-Mexico border. The Obama administration withheld 15,000 documents, inappropriately claiming executive privilege, while simultaneously arguing the president had never been briefed on the operation. This was a completely new and expanded use of executive privilege to shield documents the president had never even seen. I believe in executive privilege, but how can it be invoked when the chief executive was not directly involved? Yet it was.
We attempted to push back on the expansion of executive privilege and the refusal to comply with congressional subpoenas by introducing a resolution to hold the attorney general in contempt of Congress. Warning our colleagues about the future implications of this vote, we reminded them the resolution wasn’t just about Attorney General Eric Holder or Fast and Furious. It was about protecting the right of congressional committees to access documents in the future.
When the committee voted, not a single Democrat was willing to defend our congressional subpoena authority. When the resolution went to the House floor, some Democrats actually walked off the floor in protest.
In the floor debate on the contempt resolution, Democratic California representative Adam Schiff argued forcefully against the very position he now takes against the Trump administration. He argued:
What we are doing today is simply a partisan abuse of the contempt power. What we do will cause no injury to the department but will cause great injury to this house. The Justice Department, after providing 8,000 documents and extensive testimony is now being required to turn over privileged materials, and like all administrations before it, it has reluctantly used executive privilege to respectfully refuse to provide materials it cannot provide.
By June 2017, Schiff’s opinion on privilege had changed dramatically. No more was executive privilege something presidents did “reluctantly” to “respectfully refuse” to provide documents. In the heady days before the Russia collusion narrative fell apart, Schiff was anticipating a damning report from the special counsel investigation led by Robert Mueller. But there was one problem—Trump could legitimately use executive privilege to shield the report from public view.
Suddenly executive privilege became a relic that needed to be sacrificed for the greater good of the Democratic quest for power. “Privilege cannot be used as a shield to protect or hide potential impropriety or illegality. So we may have to go to court to pierce that privilege,” Schiff told PBS.
But wasn’t that precisely the point of Holder’s refusal to comply with the Fast and Furious subpoena? We know that it was. Details about the documents (though not the documents themselves) Holder sought to withhold were later released in response to a court order. According to a recipient of that information, Judicial Watch’s Tom Fitton, the withheld documents showed conclusively that Holder himself had directed the cover-up of the Fast and Furious scandal—personally crafting talking points and responding to congressional inquiries.
Schiff is right—privilege should not be used as a shield to protect impropriety. But he himself is on record defending its use for just that purpose. This issue is too important to be viewed strictly through a partisan lens.
Because of their failure to defend our institution, we now have strong precedent for an administration routinely and consistently ignoring congressional subpoenas. We have precedent for a president to use executive privilege to shield documents upon which he was never even briefed. We now have precedent for an administration to wait out the subpoenas and let Congress fight for them in court, where those disputes can languish until the scandal is ancient history and the administration has left office.
The right of a president to withhold information from Congress through executive privilege, though not enumerated in the Constitution, dates back to the presidency of George Washington. The two branches have been fighting over it ever since, with the Supreme Court stepping in to resolve disputes. Though it’s not unusual for partisans to take a different approach to executive privilege when the opposing party is in power, Democrats now find themselves on the other side of a battle they were winning under the Obama administration.
The Democrats’ failure to push back against the Obama administration’s blatant attempts to shield Attorney General Eric Holder from embarrassment has set a precedent they now have to live with.
At the time Holder refused to produce the documents, Cummings was reticent, denying that Holder had failed to comply. He instead took the position that the Justice Department was “still producing documents” long after the deadline had passed. Will he be