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Did Obama assert executive privilege to bail out Holder before?

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Matthew Boyle
Investigative Reporter

President Barack Obama may have actually asserted executive privilege once before to protect Attorney General Eric Holder from congressional scrutiny, documents and congressional records obtained by The Daily Caller indicate.

During Holder’s 2009 confirmation hearings, Texas Republican Sen. John Cornyn pressed Holder for details on the role he played in helping get Puerto Rican terrorists — members of the violent Armed Forces for National Liberation, who set off 120 bombs throughout the U.S. killing at least six Americans and permanently harming others — clemency during the Bill Clinton administration.

According to the Los Angeles Times, Holder drafted an “options memo” that allowed Clinton to grant commutations to the terrorists in the late 1990s when several high-ranking Department of Justice officials opposed the move. That options memo effectively facilitated clemency for those terrorists. Holder went against the DOJ’s Pardon Attorney Roger Adams’ “strong opposition to any clemency in several internal memos and a draft report recommending denial” and pushed to get the terrorists’ sentences commuted.

Shortly after Clinton granted the terrorists clemency, then House oversight committee Chairman Dan Burton — still a member of the committee now — launched an investigation into what happened. The “options memo” Holder drafted never was made public, and Clinton asserted executive privilege over many of the materials and figures involved, including that memo.

After Clinton left office, though, he waived all executive privilege assertions over “testimony of his former staff concerning these pardons [of Marc Rich and other controversial figures], or to other pardons and commutations he granted [including the FALN figures].”

Though that memo itself is still protected by Clinton’s executive privilege and has not been made public, members of Clinton’s administration, including Holder, were allowed to talk about it and anything else to do with the pardons, commutations and grants of clemency after Clinton waived the executive privilege after leaving office.

Fast-forward to shortly after President Barack Obama was elected. He had nominated Holder to be the United States Attorney General and Cornyn was pressing him to testify about the details of those FALN terrorist commutations. When asked to testify about the options memo, Holder claimed under oath in the congressional record that he was “not authorized” to do so.

Since Clinton had waived such executive privilege, it appears as though — at least according to Cornyn — Obama had asserted executive privilege over the details of that document to protect Holder as he went through confirmation hearings.

On the Senate floor, Cornyn said he thought Obama asserted executive privilege. “One of the reasons Mr. Holder has refused to answer some questions is, it appears he is invoking executive privilege,” Cornyn said in a Senate floor speech on Jan. 30, 2009. “But it is very odd because this apparent assertion of executive privilege comes despite the fact that President Clinton waived executive privilege for all testimony concerning these commutations. That is in the record of the hearing before the Judiciary Committee. I think it is unfortunate that the current administration’s first apparent assertion of executive privilege seems to come for no purpose other than to protect Mr. Holder’s record from scrutiny.”

There are two possibilities in this case, ultimately: Obama asserted executive privilege in 2009 for Holder to help him cover up his past, or Holder incorrectly claimed he didn’t have “authority” to testify about something when he did.

White House spokesman Eric Schultz wouldn’t answer when asked if Obama asserted executive privilege then, nor would Holder spokesman Tracy Schmaler.

If Obama asserted executive privilege then, too, it would mean some statements White House spokesman Jay Carney made are incorrect. “I would note that this is the first time President Obama has asserted the privilege,” Carney told reporters during a press briefing on Thursday, for instance, referring to Obama’s assertion of executive privilege to conceal Fast and Furious documents.

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