In an appearance today on America's Newsroom, Fox News contributor Karl Rove expressed concern that President Obama's assertion of executive privilege over a set of Department of Justice internal documents was a novel expansion of the doctrine. The former senior advisor to President George W. Bush was ill-equipped to make this claim, as Bush invoked the privilege under similar circumstances while Rove was his top political advisor.
KARL ROVE, FOX NEWS CONTRIBUTOR: It's one thing to exert executive privilege over the actions of the President, and his aides, and the White House. It's another thing to exercise executive privilege with regard to aCabinet official, seemingly in a matter that according to the President up until now, had no connections with, no contact with, no communications with the White House. So I'm a little bit concerned about it. I think it's an overreach.[...]ROVE: This is a very long reach. I mean basically if the President is allowed to take the privilege that goes to the Executive Office of the President and extend it to a Cabinet department, then he can extend it to any branch of the government for any matter, even if there was no presidential or White House involvement. And I'm not certain that that's what the Founders thought about when they talked about executive privilege.
Rove either forgot that the first time Bush invoked executive privilege it was in regards to Justice Department internal documents, or was being deliberately deceptive. In December 2001 the New York Times reported:
President Bush invoked executive privilege today for the first time in his administration to block a Congressional committee trying to review documents about a decades-long scandal involving F.B.I. misuse of mob informants in Boston. His order also denied the committee access to internal Justice Department deliberations about President Bill Clinton's fund-raising tactics.
As noted by law professor Peter Shane, an expert on the separation of powers, executive privilege routinely encompasses "documents generated anywhere in the executive branch":
Executive privilege is really an umbrella concept that encompasses a variety of privileges. History's most famous claim of executive privilege -- President Richard Nixon's unsuccessful attempt to withhold the "Watergate tapes" -- was an example of "presidential privacy" privilege. That privilege covers executive communications when the president is involved.The executive branch, however, historically claims a much broader privilege, the so-called "deliberative privilege."Deliberative privilege aims to protect documents generated anywhere in the executive branch that embody only the executive's internal deliberations, not final policy decisions. The current dispute involves "deliberative privilege."
During his appearance, Rove also ran with the latest right-wing conspiracy, suggesting that Obama's assertion of executive privilege indicates that he was involved in Fast and Furious while the operation was ongoing. Media Matters has previously noted that these claims are false. The president asserted executive privilege only over documents created after the failed operation was ended.