President Obama's decision to invoke executive privilege (EP) to prevent documents related to the Fast and Furious operation from being handed over to the House Oversight Committee is very puzzling. It's hard to see how the decision could withstand legal scrutiny and thus hard to understand why the President would have done it in the first place, unless he's desperately trying to hide something.
There are at least two reasons to think Mr. Obama's assertion of EP will not hold up in court. First is that EP applies only to the president and his staff in their role as advisors to the president. It does not apply to cabinet officials or to anyone outside the president's staff.
Second, it does not apply in cases where the purpose of soliciting the documents is to determine whether there has been government misconduct, which is the very reason the House Oversight Committee has subpoenaed them.
The fact that Mr. Obama chose to take this route suggests an atmosphere of panic in the Oval Office, but why? It's hard not to think that either the White House knew about Fast and Furious early on, even though they've denied it, or worse, that White House personnel, possibly the President himself, were actually involved in the decision to go ahead with the operation. If this were the case it would be extremely problematic for Mr. Obama to have signed off on an operation that subverted the law, subverted a foreign government (Mexico's), and resulted in two hundred dead Mexican civilians and the deaths of two American agents, all for an operation the rationale for which is incoherent, as we'll discuss tomorrow.
Meanwhile, Ed Morrissey has some helpful details to add at Hot Air on the use of executive privilege. This is not going to go away, and I suspect that within a couple of days even the mainstream media will start reporting on it.
