Is President Obama’s assertion of executive privilege valid?

As noted by Jonathan Adler, below, President Obama today asserted Executive Privilege for Attorney General Eric Holder’s refusal to comply with a document subpoena from the U.S. House Oversight Committee. The letter is here. The Committee will vote later today on a resolution to hold Holder in contempt of Congress. The Committee Report in support of the contempt resolution is here. A fact sheet on the contempt resolution is here.

Fast & Furious was a program implemented by the Arizona office of the Bureau of Alcohol, Tobacco, Firearms & Explosives, in Sept. 2009 through January 2011. In F&F, BATFE lied to and coerced Arizona gun stores into selling firearms to obvious “straw purchasers”–persons who were illegally buying firearms on behalf of someone who cannot legally buy firearms in the U.S. The “someone else” was Mexican gun traffickers, with most of the guns going to the Sinaloa cartel. Over 2,000 firearms were thus put into criminal hands. In this article for the NRA magazine America’s 1st Freedom,  I provide a timeline of events through October 2011. F&F was a larger and even more destructive reprise of Operation Wide Receiver, which in 2007 put about 500 guns into criminal hands, before BATFE’s management in DC began asking questions that immediately led to Wide Receiver being shut down.

On Feb. 4, 2011, the Department of Justice sent a letter to the House Oversight Committee which falsely claimed that no “gunwalking” (allowing guns to pass into criminal hands, without the guns being kept under constant surveillance) ever took place in Fast & Furious. In December 2011, the Department of Justice admitted that the letter was false, and formally withdrew it. The author of the letter, Ronald Weich, has left DOJ to become Dean of the University of Baltimore Law School.

Whistleblowers from BATFE started coming forward in December 2010, after F&F guns were used in the murder of Border Patrol Agent Brian Terry. There has been extensive retaliation against the whistleblowers.

The particular issues in the contempt vote, and therefore in President Obama’s assertion of Executive Privilege involve:

1. Retaliation against the whistleblowers.

2. Post-Feb. 4 DOJ documents about the false Feb. 4 letter, communications with the White House about F&F after Feb. 4, and other DOJ documents involving the (alleged) continuing cover-up after Feb. 4.

While Fast & Furious was going on, personnel at the National Security Council in the White House received information about it, although the full extent of what they were told is not yet clear. The contempt resolution is based on a document subpoena which was issued in October 2011.

According to Attorney General Holder, the DOJ has 140,000 documents related to Fast & Furious. Fewer than 8,000 have been provided to Congress pursuant to subpoenas. The contempt vote has been narrowed to 1,300 documents. In refusing to comply with the House subpoenas, the DOJ has refused to create a privilege log–which would identify withheld documents, and the legal reason for their being withheld.

So here are my questions for the commenters: Is President’s assertion of executive privilege legally persuasive? Do the citations provided in the executive privilege letter provide an accurate description of current law on executive privilege? Todd Gaziano, of the Heritage Foundation, argues that Executive Privilege is not properly invoked here.

UPDATE: I will be discussing today’s developments on WDTK radio, Detroit, at 4 p.m. Mountain Time. You can listen live here.

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