Congress cannot legitimately hold someone in contempt for withholding privileged documents

[cthulu2016]

Last edited Thu Jun 21, 2012, 12:42 PM - Edit history (15)

People keep noting that congress has never, before today, advanced a contempt charge in the face of an assertion of executive privelige, but they don't explain why that is.

Congress does not have the power to determine the legitimacy of an executive privilege claim. But holding Holder in contempt would be a defacto congressional determination that the document's are properly demanded and thus that the president's executive privilege claim is invalid.

If a court got involved in this contempt business they would say:

1) Congress does not have the power to demand privileged documents. 2) Congress does not have the power to negate an executive privilege claim. 3) The president's assertion of executive privilege in this case has not been adjudicated. Conclusion: You cannot hold someone in contempt for failing to produce documents you may have no right to demand and it is an open question whether you have the right to demand these documents.

Here's the legitimate process of law here (in a hypothetical world where Congress is concerned with legitimate process of law)... Congress has to go to Court (judicial branch) to resolve a dispute between the executive and legislative branches over whether the requested information is protected by executive privilege.

Congress first must go to court and say, "This is not a legitimate executive privilege claim." That is the controversy.

If the courts say it is executive privilege then Congress has no right or power to demand it. It is well established law that Congress cannot demand privileged information. The question is in defining that privilege.

If the courts say it is not executive privilege, then Congress says, "See? Now turn it over."

And if Holder does not turn it over after it have been found non-privileged then he can be held in contempt.

Once Obama claimed executive privilege congress lost any basis for a contempt charge until it is resolved that the EP claim is invalid.

So a contempt charge would be a clear abuse of power. There is no other side to the story.

(And a gold star to any media stooge who figures this out.)

[warrior1]

1. repukes

do not care about the rule of law.

Good points you laid out.

[cthulu2016]

2. .

[cthulu2016]

3. .

[badtoworse]

4. You're missing the point. The objective is to raise awareness about Fast & Furious

Fast and Furious really stinks. It was illegal and hundreds died because ATF allowed guns to be smuggled into Mexico. Up until now, the controversy has largely been below the radar screen - Issa vs Holder. By elevating this to an Executive Privilege case, it becomes much higher profile and the facts of the case will get a full public airing. That will reflect very poorly on Holder and also on Obama if he becomes personally involved (as he is doing).

[jeff47]

5. No. The objective is to smear the Obama administration.

Keep trolling though. I'm sure you and Issa will fail as badly as Burton did.

[cthulu2016]

6. That's the objective of asserting Executve Privilege?

[badtoworse]

8. That is the Republicans' objective

They want this as high profile as possible. By claiming Executive Privilege, Obama is playing into their hands.

[cthulu2016]

13. The best of two bad options is still the best

It would be best if this went away, but given that the house committee was prepared to advance a contempt action then Obama's action was forced.

Without Obama doing what he did, Holder could be rounded up by the Sergeant-at-Arms and held in Congress jail.

With Obama's action, it will be easy to get an injunction against congress taking any actual action on a contempt holding.

I don't like it, but given that Congress is crazy enough to hold Holder in contempt (which Obama cannot prevent) it seems a forced legal move.

[Bandit]

9. The point is to get Holder at all costs

Holder is trying to stop the voter purges going on throughout the USA and Republicans have to make him stop.. that is the point, the rest of this is just camouflage..

[Spazito]

11. The repubs don't give a shit that "It was illegal and hundreds died..."...

Issa voted FOR the bill that put this into play back in the bush regime era. This has everything to do with the DOJ, under Holder, is daring to put a stop to voter suppression moves by the repubs in States like Florida.

This will reflect badly on the repubs in Congress whom the public already hold in contempt. Their favorables are in the single digits.

[hifiguy]

7. That's the process alright.

I remember Watergate very well indeed.

[Nuclear Unicorn]

10. The courts will probably decide. n/t

[Spazito]

12. Good OP!

"Once Obama claimed executive privilege congress lost any basis for a contempt charge until it is resolved that the EP claim is invalid.

So a contempt charge would be a clear abuse of power. There is no other side to the story."

Well said.

[cthulu2016]

14. thanks