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Darrell Issa Challenges Barack Obama’s Executive Privilege Assertion

Tom Williams/CQ Roll Call

House Oversight and Government Reform Chairman Darrell Issa (R-Calif.) challenged President Barack Obama’s assertion of executive privilege in a Monday letter to the president, echoing Speaker John Boehner’s (R-Ohio) comments that the assertion suggests White House involvement in the “Fast and Furious” gun-smuggling operation.

Executive privilege is limited to “documents and communications that implicate the confidentiality of the President’s decision-making process, defined as those documents and communications to and from the President and his most senior advisers. Even then, it is a qualified privilege that is overcome by a showing of the committee’s need for the documents,” Issa wrote.

“To date, the White House has steadfastly maintained that it has not had any role in advising the [Justice] Department with respect to the Congressional investigation. The surprising assertion of executive privilege raised the question of whether that is still the case,” Issa said.

The letter represents a shift from Issa’s comments Sunday on Fox News. In that appearance, he conceded that there is no evidence that the Obama administration has been involved in a cover-up of the controversial program. But he said he believes Boehner will bring contempt proceedings against Holder for withholding certain documents.

Democrats have also changed their tune from their challenges to the George W. Bush administration’s broad use of executive power. Democrats now say the legal doctrine protects internal deliberations from disclosure across the entire executive branch.

Obama spokesman Eric Schultz called Issa’s arguments “absurd.”

“Our position is consistent with Executive Branch legal precedent for the past three decades spanning Administrations of both parties, and dating back to President [Ronald] Reagan’s Department of Justice. The Courts have routinely considered deliberative process privilege claims and affirmed the right of the executive branch to invoke the privilege even when White House documents are not involved,” Schultz said.

Issa cited two recent decisions by the influential U.S. Court of Appeals for the D.C. Circuit that sided with disclosure over an assertion of executive privilege.

The first case, the 1997 In Re: Sealed Case (Espy) decision, dealt with a federal investigation into alleged misconduct by former Agriculture Secretary Michael Espy. President Bill Clinton asserted executive privilege over documents subpoenaed by a grand jury.

The decision, which quotes James Madison on the importance of the government remaining transparent, outlines two types executive privilege: the presidential communications privilege and the deliberative process privilege.

The court described the presidential communications privilege as limited to a set of core presidential advisers with proximity to the Oval Office, and refers to the broader deliberative process privilege as limited.

Even in the presidential communications privilege, “the privilege disappears altogether when there is any reason to believe government misconduct occurred,” the court said.

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