Southern trees bear a strange fruit,
Blood on the leaves and blood at the root,
Black bodies swinging in the southern breeze,
Strange fruit hanging from the poplar trees.
o, Barack Obama and Eric Holder refuse to quietly and obediently stick their heads into the Republican noose and get politically lynched. Hmm. Good for them. This isn’t exactly the 19th and early 20th century—at least not yet. (We still have an election ahead that will decide that.)
Normally, I’m all for the legislative branch holding the executive branch accountable for doing dumb things, but in the case of Eric Holder and Fast and Furious, the accountability should first have started with the Bush administration and then-Attorneys General Alberto Gonzalez and Michael Mukasey.
It was under their leadership that the idea of “gun-walking”—the ATF allowing the criminals in the Mexican drug cartels to obtain guns in the U.S. in the hope of landing the big fish—first began and continued with or without their knowledge.
You see, we don’t really know whether Gonzalez or Mukasey—or George W. Bush for that matter—knew about what was then called Operation Wide Receiver because neither former Attorney General has been called to testify before Darrell Issa’s Committee to Get The President Or That Other Uppity Negro In The Justice Department.
All we really know is that, sadly, whatever it was that began under Bush ended under Obama with a U.S. Border Patrol Agent named Brian Terry being shot and killed with a gun that the good guys deliberately put in the hands of the bad guys.
Talking about Darrell Issa and noose-crazed Republicans in the House, Sen. Chuck Schumer said:
…there’s been a selective way in which this investigation has been pursued so far. It’s sort of one-sided outrage about whole issue when we know now that it began or its progenitor began before you took office – before President Obama took office.
The House committee chair has said he would look at both sides – wrongdoing on both sides. That hasn’t happened. It appears…It’s a pretty good bet that top officials at the Bush Justice Department, perhaps the Attorney General himself, learned of this operation in its early stages. We know a memo was prepared; we don’t know what he knew. At the very least, they let it continue. For all we know, they’ve endorsed it. And so I think it’s important that we look at both sides.
Agent Brian Terry’s family, whose totally understandable disgust with what happened has been exploited by Republicans (the documents at the center of the dispute with Holder and the White House have nothing to do with how his death happened), are naturally upset that Mr. Obama has invoked executive privilege to keep some documents out of the hands of the legislative branch:
Our son lost his life protecting this nation, and it is very disappointing that we are now faced with an administration that seems more concerned with protecting themselves rather than revealing the truth behind Operation Fast and Furious.
That same sentiment has been expressed by many right-wing pundits and politicians, including the Speaker of the House, whose spokesman charged:
The White House decision to invoke executive privilege implies that White House officials were either involved in the ‘Fast and Furious’ operation or the cover-up that followed. The Administration has always insisted that wasn’t the case. Were they lying, or are they now bending the law to hide the truth?
For what I will call the “official” Fox “News” reaction to this development, I will turn to “senior judicial analyst Andrew Napolitano“:
Executive privilege protects communications with the president, the human being of the president, not with people that work for him and the Justice Department. … If the attorney general sat down and discussed it with the president, he probably doesn’t want the Congress and the public to know that, because we know of the awful events that occurred as a result of the Fast and Furious escapade.
But we also know that executive privilege only pertains to military, diplomatic, and sensitive national security matters. Now, was fighting the drug gangs at the border a sensitive national security matter? And, if so, was the President of the United States of America personally involved in making decisions as to how to conduct that fight? If that’s the case, this has reached a different level and we now know why the attorney general has ferociously defended these documents.
Napolitano’s hysterical speculation just isn’t backed up by the facts or how courts have ruled on executive privilege. As Ian Millhiser pointed out a couple of years ago:
The term “executive privilege” is often used as a blanket term to refer to any presidential assertion that an executive branch document should not be disclosed, but the courts have recognized both a stronger and a weaker form of executive privilege.
The stronger version is called “presidential communications privilege,” which,
applies to communications made directly to the president so long as those communications occur “in performance of [a president’s] responsibilities” and “in the process of shaping policies and making decisions.”
The weaker version is called “deliberative process privilege,” which applies in the present case. Here is how Wikipedia explains it:
Deliberative process privilege is the common-law principle that the internal processes of the executive branch of a government are immune from normal disclosure or discovery in civil litigations, Freedom of Information Act requests, etc.
The theory behind the protection is that by guaranteeing confidentiality, the government will receive better or more candid advice, recommendations and opinions, resulting in better decisions for society as a whole. The deliberative process privilege is often in dynamic tension with the principle of maximal transparency in government.
You see, if Darrell Issa types (on both sides) are totally free to snoop around in the internal deliberations of the executive branch, then folks around the president or his cabinet will not feel comfortable in expressing themselves.
On the other hand, if the president is totally free to keep what he is doing secret, then he will become, uh, Richard Nixon.
In this case, until Republicans are willing to dig into the trash of the former Administration, their outrage over Obama’s use of executive privilege related to Fast and Furious will sound hollow, and the palefaced extremists in the House of Representatives, itching to string up the uppity Negro running the Justice Department, may end up hanging themselves if John Boehner gives them enough rope.
Given the zealots in the House these days, we could end up with the spectacle of the whole House finding Eric Holder in contempt of Congress and the Attorney General arrested and thrown in the U.S. Capitol hoosegow. The only question then would be how Boehner—who has failed time and again to control the zealots—would keep the angry mob of Tea Party legislators away from his cell.