Cross-posted at Haemet.
10 AM EDT: deadline set by the Congress for production of Fast and Furious documents from Eric Holder. Failure to produce said documents could result in Holder being cited for contempt.
Okay, Constitutional Law Professor, let’s get down and do some real constitutional law. The separation of powers does enable a President to exert executive privilege over documents when they are going to a branch of government that has no use for them. (As but one example, George Washington invoked executive privilege over documents relating to a treaty, when subpoenaed by the House, because the Senate, not the House, is the sole legislative body responsible for the ratification of treaties.)
Nevertheless, “I’m the President so what I say, goes” is not a permissible means to block Congressional investigation. In U.S. v. Nixon, the Supreme Court denied then-President Nixon’s invocation of executive privilege. It held that absent particularised circumstances (involving national security, military, or diplomatic secrets), executive privilege does not bar the production of documents at a criminal trial. While such material may not be made public (and should be subject to in camera inspections, where possible), a President cannot simply refuse to hand it over, citing generalised concerns.
So Obama, please let us know exactly how Fast and Furious will implicate national security (except to cause violence at the border). Please. Because it seems as if it’s not a diplomatic issue with another nation, not a military issue, and not tending to harm national security in a particularised manner.