During a May 18 appearance on Fox's America's Newsroom, conspiracy peddler Katie Pavlich made a number of far out claims concerning how the doctrine of separation of power relates to the ongoing investigation of the ATF's failed Operation Fast and Furious by congressional Republicans.
As you may recall from high school civics class, separation of powers refers to the system of government we have in the United States where the authority of the federal government is divided among three co-equal branches. This equilibrium between branches of the federal government is maintained through the system of checks and balances established by the U.S. Constitution.
But in Pavlich's world, the legislative branch reigns supreme and the Department of Justice must supply any and all documents requested by House Oversight Chairman Darrell Issa (R-CA) during his committee's investigation. This ridiculous theory would disrupt the system of checks and balances and is refuted by Congress' own research department and court precedent concerning the right of the Executive to withhold certain types of information.
KATIE PAVLICH, TOWNHALL NEWS EDITOR: Not to mention you have the Justice Department engaging in a full on cover-up, the latest in Eric Holder refusing to comply with a congressional subpoena, which they have the authority to issue and Justice Department has to comply with it under the terms of the Constitution. It's just another way of proving that they really have a lot to hide here.
BILL HEMMER, HOST: You also know there are tens of thousands of documents that have been given internally to an IG -- an inspector general -- why is that not sufficient? Explain that?
PAVLICH: Well the Inspector General actually worked for Eric Holder during his time as a U.S. Attorney in Washington D.C. so there is a conflict of interest there. And everything that the Inspector General is privy to, Congress is also privy too, and the Justice Department investigating itself on this matter, they are willing to go to the lengths of covering it up internally.
PAVLICH: Speaker Boehner did push President Obama this week to tell his Attorney General to start complying and getting to the bottom of Fast and Furious. In fact, this investigation has been going on for more than a year now. We deserve answers. And President Obama, as the Commander in Chief, has a responsibility to tell his Attorney General, "Congress has the authority to subpoena you and you have to comply with that."
In the span of a few minutes, Pavlich butchered a number of basic principles concerning how our federal government operates. It was pointless of Pavlich to mention that the Department of Justice's inspector general used to work for Attorney General Eric Holder in order to suggest bias on his part, because the Department of Justice's inspector general also works for Holder presently. That is what (non-presidentially appointed) inspectors general do; they serve as politically independent individuals within government agencies for the purpose of conducting internal investigations. Furthermore, the president's responsibilities as Commander in Chief relate to command of the military, not the president's ability to oversee federal agencies as Pavlich suggested.
But the biggest error made by Pavlich -- one that she repeated three times during her appearance -- is that the Department of Justice must turn over every single document requested by the House Oversight Committee in order to be in compliance with Issa's subpoena.
The Justice Department strongly disputes this notion and in a May 15 letter indicated that the Department's view is that Issa's subpoena has been satisfied to the extent required by law. DOJ asserts that any documents responsive to Issa's subpoena that have not been turned over are protected from disclosure by executive privilege or the longtime DOJ policy across both Democratic and Republican administrations to bar release of information relating to ongoing law enforcement investigations.
The Constitution makes no specific reference to a presidential power to withhold documents from Congress, nor does it specifically recognize a congressional need for information to legislate. Yet it is now routine to consider both powers implied in the operation of the executive and legislative branches. Long before the Supreme Court acknowledged that fact the political branches had already reached a rough understanding and worked out accommodations. When these two implied powers collide, which should give way? No magic formula yields a ready and reliable answer, for too much depends on individual circumstances and political considerations.
This admission that information cannot be automatically compelled from the executive branch is especially significant because the report exists in order to provide tools to legislators seeking information from the executive branch during the course of an investigation.
Congressional Research Service is certainly not alone in suggesting that, as a co-equal branch of government, the legislative branch's power of investigation is not unchecked. As held in the Supreme Court case Quinn v. United States, Congress' "power to investigate, broad as it may be, is also subject to recognized limitations. It cannot be used to inquire into private affairs unrelated to a valid legislative purpose. Nor does it extend to an area in which Congress is forbidden to legislate. Similarly, the power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary."