Laurie Kellman

WASHINGTON: A House vote finding Attorney General Eric Holder in contempt of Congress today would create election-year fireworks but maybe not much lasting sizzle. Federal judges who’ve been called into similar disputes often sound like frazzled moms, in essence telling Congress and the president, “I don’t care who started it, you two end it.”

Time appears to be limited for the House to pursue a criminal contempt case against Holder or a civil case to compel President Barack Obama’s administration to turn over subpoenaed documents. A contempt citation against Holder presumably would expire when the current Congress ends in January.

If the courts do end up deciding the case, however, they could shed some light on a foggy patch of constitutional law: What happens when Congress demands that a president turn over documents he says should be kept secret?

Particularly, once the president invokes executive privilege to deny Congress documents it has subpoenaed.

The Supreme Court last took up the constitutional question of executive privilege during Watergate in the 1970s. But beginning with George Washington, presidents have asserted authority to withhold executive branch records from Congress. The bickering over the proper reach and limits on this authority has never stopped. It’s “vague and essentially undefined terrain,” according to the Congressional Research Service.

This time the argument is whether Obama is within his rights to order Holder to withhold some Justice Department documents subpoenaed by a House committee. The lawmakers are investigating a flawed anti-smuggling investigation in Arizona known as Operation Fast and Furious that tried to track guns — suspected of being purchased illicitly in the U.S. — all the way to gun-smuggling kingpins, who long have eluded prosecution. Agents lost track of about 1,400 guns and some have turned up at crime scenes in Mexico and the United States.

Formal Justice Department policy forbids using this risky strategy dubbed “gun-walking” and instead calls for agents to arrest people they suspect of buying guns for smugglers or others as soon as they leave gun stores. But that old strategy failed to stop guns from reaching Mexico — more than 68,000 in the past five years — and generated wide criticism.

Politics color opinions

House Oversight and Government Reform Committee Chairman Darrell Issa, R-Calif., says because the Justice Department initially denied but later acknowledged that Fast and Furious tried “gun-walking,” he needs the documents to determine whether officials intentionally lied to Congress. The White House calls the demands for more and more documents an “election-year fishing expedition.”

Claims of executive privilege tend to be viewed through a political lens.

As a Democratic senator in 2007, Obama accused Republican President George W. Bush of hiding behind executive privilege. Mitt Romney, at the time, defended Bush as simply trying to preserve the powers of the presidency.

These days, Obama is claiming the power of executive privilege, and Romney, his Republican presidential rival, accuses him of hiding behind it..

Two types of privilege

Through history, presidents of both parties have sought to expand executive privilege. And Congress has pushed back.

There are two main types of executive privilege. One privilege, for “presidential communications,” only covers the president and the work of top aides preparing advice for the president.

The other, known as “deliberative process privilege,” covers a much wider swatch of administration officials, even if they weren’t working on something for the president specifically. Presidents are required to have a stronger argument to justify keeping secrets under this broader authority, which can involve documents they never saw or were even intended to see.

The White House says Obama is claiming “deliberative process privilege” to cover Justice Department documents that don’t involve the president or his top aides directly but instead relate to the department’s decision-making process. The idea is that officials throughout the executive branch need to discuss policy decisions freely, in private, without worrying that their words or recommendations will be nitpicked by Congress later.

Issa argues, however, that the president can only legitimately claim executive privilege for documents that involve himself or his top advisers. This would be true, if Obama were claiming the communications privilege, but so far he hasn’t. He’s claimed only “deliberative” privilege.