When Obama asserted executive privilege over a set of internal Department of Justice (DOJ) documents on June 20, Fox News was quick to push the narrative -- straight from the GOP spin room -- that the president's use of privilege implied something sinister was afoot at the White House. As Happening Now guest host Gregg Jarrett put it, "If the president was not involved then executive privilege does not apply. If the president was involved, then three things, either Holder was not telling the truth in front of Congress, and or the White House was not telling the truth when it denied the White House and the president were involved, and the president himself may have not been telling the truth when he made statements."The assertion of executive privilege raises monumental questions, Grassley said. How can the President assert executive privilege if there was no White House involvement? How can the President exert executive privilege over documents he’s supposedly never seen? Is something very big being hidden to go to this extreme? The contempt citation is an important procedural mechanism in our system of checks and balances. The questions from Congress go to determining what happened in a disastrous government program for accountability and so that it’s never repeated again.
Indiana Republican Rep. Dan Burton, a former chair of the oversight committee for six years, said Issa has been patient. He said the president’s decision to assert executive privilege to withhold documents makes him wonder if Obama knew of Fast and Furious.
The attorney general has asserted on numerous occasions that he didn’t know about this, now the president of the United States has claimed executive privilege,” Burton added. And now that brings into question how much Holder knew about this, and that the president knew about this. My question is, who knew about this, how high up did it go, did it go to the attorney general or president of the united states and when did they know about this?
There are two problems with this argument. First, Obama only asserted executive privilege over documents generated after February 4, 2011. Fast and Furious was terminated in January 2011. According to the letter that DOJ sent to Obama asking the president to assert his privilege, the documents in question "were created after the investigative tactic at issue in that operation had terminated and in the course of the Department's deliberative process concerning how to respond to congressional and related media inquiries into that operation."
Secondly, presidents have traditionally asserted executive privilege over matters in which they are not personally involved. When President George W. Bush first used executive privilege in December 2001, he acted to shield internal DOJ documents. In a separate instance in 2008, his Attorney General, Michael Mukasey, advised the president that he could shield Environmental Protection Agency documents because "[t]he doctrine of executive privilege also encompasses Executive Branch deliberative communications that do not implicate presidential decisionmaking."