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June 21, 2012 4:00 A.M.

Hiding Behind Executive Privilege

By The Editors

President Barack Obama has long tried to distance himself from the “Fast and Furious” scandal at the Justice Department, which stems from a program under which Mexican drug cartels were allowed to acquire U.S. firearms that were later used against U.S. law-enforcement personnel. By invoking executive privilege to stymie congressional investigation of the case, the president has placed himself squarely in the center of it.

President Obama, who had been a bitter critic of the Bush administration’s use of executive privilege, today through his representatives protested that he is only doing what the Bush administration did before him. The same man who once accused President Bush of “hiding behind executive privilege” is now hiding behind George W. Bush.

Executive privilege serves a necessary function in our constitutional order, reinforcing the separation of powers and protecting sensitive deliberations within the executive branch, and it is especially strong when the president or his closest advisers in the White House are involved in the communication. In this case, the administration has long denied that the president was directly involved. Instead, Attorney General Eric Holder wasted everyone’s time invoking a spurious form of deliberative privilege that was completely decoupled from executive privilege. Such a privilege has no force vis-à-vis Congress. By finally invoking executive privilege yesterday, the president belatedly acknowledged that his attorney general was full of it.

Executive privilege has legitimate uses — and illegitimate uses. For instance, it is not intended to be used merely to protect the president from political embarrassment stemming from grievous errors in judgment by members of his cabinet or officers of the departments over which they preside. There is good reason to believe that in this case the privilege is being abused.

Fast and Furious became public knowledge only when dissatisfied agents within the Bureau of Alcohol, Tobacco, Firearms, and Explosives blew the whistle on the program after the murder of Brian Terry, a Border Patrol agent gunned down by criminals wielding semiautomatic rifles, at least two of which were sold to arms traffickers with the foreknowledge of the Justice Department as part of the program. Congress has the right to make inquiries of the executive branch in the course of undertaking its constitutional lawmaking duties — for example, while studying whether to pass laws forbidding U.S. law-enforcement agencies to knowingly allow bloodthirsty drug cartels to acquire firearms. In such situations, executive privilege is by no means absolute. The privilege is qualified and contingent. One limiting factor is an allegation of official misconduct, and there is reason to believe that official misconduct has occurred in this case, not least Holder’s conflicting and inconsistent accounts of the case and the presence of evidence suggesting that his accounts have been in some part untrue. Indeed, the claim of executive privilege will only increase the sense that Holder has been more dishonest in his congressional testimony than is already evident.

The case is quickly turning into a showdown between the executive and legislative branches of government, an undesirable development that the president could easily have prevented by simply waiving privilege in this matter (declining to invoke executive privilege in no way diminishes the president’s right to use it in the future) and instructing his attorney general, who is currently facing the prospect of being held in contempt of Congress, to cooperate with the investigation. If the full Congress holds Holder in contempt, it is unlikely that the Justice Department will choose to prosecute the man in charge of it. That leaves Congress with the option of filing a lawsuit to force the Justice Department to comply with the subpoena and release the documents in question. Congress should avail itself of that option. If the case is litigated, the administration will almost certainly lose. In the meantime, Mitt Romney should commit to a full investigation of Fast and Furious should he be elected in November.

Disputes between co-equal branches of government are best settled politically, and, fortunately for the American people, an election is at hand. What we already know about Fast and Furious bespeaks gross irresponsibility at the Justice Department — and an equally serious failure in judgment at the White House, which today has declared that it cares more about its immediate political prospects than about cooperating with a full and open investigation of government actions that abetted the murder of an American law-enforcement agent.