Facing a contempt vote, Attorney General Eric Holder urged Obama to invoke 'executive privilege' to avoid turning over documents to Congress. To be valid, the claim must bear on a core power of the presidency.
President Obama on Wednesday invoked executive privilege to withhold from a congressional committee some documents dealing with the failed gun enforcement operation “Fast and Furious."
Can he do that? What’s executive privilege, exactly?
Well, executive privilege is not mentioned in the Constitution, per se. But since the founding of the republic, presidents have, on occasion, claimed a right to withhold information from Congress in the name of confidentiality. Their theory is that, without this right, it would be much more difficult for US chief executives to get the unvarnished advice they need to run the nation.
George Washington, for instance, in 1796 refused to let the House of Representatives see presidential papers dealing with negotiations over the controversial Jay Treaty with Great Britain. Some years later, Andrew Jackson said Congress couldn’t have documents detailing negotiations over the shape of Maine.
In the 1950s, President Eisenhower refused to allow his attorney general to testify before the McCarthy-era House Un-American Activities Committee. It was at this point that the concept got the name “executive privilege” and expanded to cover more than direct presidential papers.