SUBPOENAS FOR MATERIALS CLAIMED PRIVATE UNDER EXECUTIVE PRIVILEGE HAVE BEEN ISSUED IN THE PAST
by Sharon Rondeau
(Jul. 2, 2012) — Speaker of the House John Boehner has “vowed” to pursue putative Attorney General Eric Holder over his refusal to turn over documents subpoenaed by a House committee last fall associated with Fast & Furious, a gunrunning operation in which U.S. firearms ended up in the hands of Mexican drug cartels and resulted in at least one American’s death.
On Thursday, Holder was cited for contempt of Congress for withholding the documents. Just prior to the convening of the full House for debate and voting on the matter, Obama invoked executive privilege over the documents, which led some observers to believe that Obama played a part in the failed gunrunning operation.
In 1974, the U.S. Supreme Court ruled in United States v. Nixon that the president may claim executive privilege and that courts should generally honor it. However, the court also stated:
We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
Presidents have used executive privilege throughout history, beginning with George Washington.
Before the vote on citing Holder for contempt was taken, Rep. Darrell Issa, chairman of the Oversight & Government Reform Committee, stated that “Lying to Congress is a crime,” and Boehner said that Republicans will file a lawsuit in U.S. District Court in an attempt to gain access to the documents Obama and Holder have refused to release.
The U.S. Justice Department, of which Holder is the putative head, has stated that it will not prosecute him on the criminal contempt charge.
A Senate investigation into Fast & Furious is also ongoing.