Executive Privilege and the Constitution

As you may have heard this afternoon, the House Oversight Committee voted to charge AG Eric Holder with contempt, which means that if additional DOJ documents concerning the Fast and Furious scandal aren't given over to Congress, the full House will vote on the contempt charge sometime next week.  The Obama Administration has now brought itself into the matter by claiming executive privilege (a horrible thing when used by the Bush Administration), meaning that AG Holder would not have to turn over the documents in question.  This move, however, would not stop the contempt charges from moving forward, but it would bolster the DOJ's case.

Andy McCarthy at NRO thinks that way that executive privilege is being invoked by the Obama Administration is outside of the bounds of the Constitution:

I don’t think there is (or, at least, that there should be) an executive prerogative of “effective government decision-making” that allows a department or agency created by Congress to deny Congress information on the ground that disclosure would compromise its congressionally-prescribed mission. That is a judgment for Congress to make, weighing the need for the information against the risk of compromising a mission the executive would not have in the first place absent congressional authorization.

This should be a political question, not a legal one. And for that reason, I’m not very concerned about congressional excess. To be clear, I’m not saying that the Justice Department must indulge every individual member of Congress who wants information — when I was at the U.S. attorney’s office, we routinely turned down such requests, and rightly so.

I am talking about when Congress collectively acts the constitutional body created by Article I, including through its designated committees with subpoena power. If the majority holding sway in Congress were to make a frivolous or politicized request that risked the successful completion of a critical Justice Department investigation in order to score political points, that majority’s gamesmanship would be exposed by the minority and the executive branch; the irresponsible members would be punished at the ballot box. If, on the other hand, the majority were aggressively pursuing information because it was necessary to probe a matter of patent public significance — e.g., providing guns to violent drug cartels that predictably result in murders, including the killing of a federal law enforcement agent — the voters would support the majority and punish those who tried to stonewall.

Executive privilege is legitimate, and certainly has its place when it comes to the president’s constitutional duties. But it is far less compelling when asserted in an effort to keep from Congress information about the conduct of a government department that the Constitution does not require and that owes its existence to Congress.

I really don't know too much about the ins and outs of these matters, but McCarthy seems to present a strong case here.

Even if Holder is found in contempt by the House, it will then be handed over the courts, which will probably require years to sort out.  But even if goes that far, the public will no doubt view the Obama Administration in a less than favorable light.  And they will be wondering why it took the MSM so long to report on a story of such importance.

UPDATE:

John Hinderaker has weighed in on this in a long and substantive post that really sheds some light on this whole debacle.  Please read the whole thing.

I knew that the MSM really simplifies things when they report on complicated issues for public consumption, but after reading this post, it really makes me question whether they really even care about looking into this at all.