Few principles are more important to our constitutional scheme than the separation of powers, which is precisely why President Obama's bogus assertion of executive privilege to thwart Congress' investigation into Fast and Furious is so inexcusable.
Executive privilege is an important safeguard against congressional overreach and to preserve the separation of powers. The inherent right of the executive to protect highly sensitive information has long been recognized, and the privilege was judicially established during the Watergate era.
As such, Congress should not go on fishing expeditions against a president to score political points. But neither should a president assert the privilege to obstruct a legitimate investigation when there appears to be no colorable claim to the privilege. This trivializes the privilege and the separation of powers it is designed to protect.
Legal experts agree that the privilege applies to communications to which the president or an adviser acting on his behalf is a party. But they disagree about whether it applies to internal communications within executive agencies when neither the president nor his representative were involved in those communications.
As the communications for which the privilege is being asserted here were reportedly internal Justice Department communications, many view the privilege claim dubiously.
But even when the privilege is applicable, it is qualified and can be overcome when Congress demonstrates it has a substantial need for the information it seeks. In this case, Congress is seeking relevant information from the Justice Department, which it has been trying to obtain for more than a year.
At every turn, Attorney General Eric Holder has stonewalled and obstructed congressional investigators. He is withholding thousands of pertinent documents, using an internal investigation as cover. It was because of Holder's persistent refusal to cooperate that Rep. Darrell Issa, R-Calif., threatened to hold him in contempt.
At the last minute, President Obama, who had claimed from the outset that he had no prior knowledge of the operation, asserted the privilege on Holder's behalf, as only the president can invoke this important privilege.
The attorney general has a unique responsibility as a special steward to see that the laws are fairly and equally administered, and the Justice Department is the last federal agency that should be involved in a cover-up to obstruct the legal process. Both Holder and Obama are betraying that trust by the specious assertion of privilege in this case.
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