For veteran Congress watchers, President Barack Obama's formal claim of executive privilege regarding certain Justice Department documents related to Operation Fast and Furious will generate a sense of déjà vu.
Disputes over legislative access to executive documents occur in almost every presidential administration. Their resolution inevitably entails a set of legal and political considerations that change from episode to episode.
Unfortunately for the House Committee on Oversight and Government Reform, its legal position is uncertain at best, and almost all political considerations would seem to favor the White House.
Whether or not the full House votes Attorney General Eric Holder in contempt, the likeliest resolution will be an informal settlement in which the Justice Department expands slightly on its current offer of disclosure, the committee narrows the range of documents it is demanding, or both compromise in a mutual, face-saving gesture. At least, that would be likely in politically "normal" times.
The form of executive privilege at stake in the current dispute is "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.
Deliberative privilege is not a legal absolute. The executive branch concedes that when another branch of government demands privileged documents within the executive's control, they sometimes have to be turned over.
They have to be turned over when the demanding branch can articulate a compelling need for the information to fulfill one of its own constitutional functions -- a need that outweighs the executive branch's interest in confidentiality.
A key problem now for the House Oversight Committee is thus far it has yet to state in a very concrete way why it needs the particular documents it is demanding.
In contrast, the executive branch has articulated a strong and highly specific reason for withholding the documents at issue: Forced disclosure to Congress of internal deliberations concerning how best to interact with Congress would undermine the executive's capacity to function as a co-equal branch. It would undermine the prospects for future candid deliberations about interactions with the other institutions of government.
Resolving such a dispute sounds like a matter for the courts, but the judiciary is unlikely to be of much practical help now to the House.
If the House brings a civil action to enforce its subpoena, the matter is unlikely to resolved by the courts before the election or, indeed, before the expiration of the current Congress.
The House could ask the U.S. attorney for the District of Columbia to prosecute Holder for contempt, but the Justice Department long ago took the position -- in a very careful opinion written by then Assistant Attorney General Theodore Olson -- that the department is not required by law to prosecute executive officials for contempt when the ground for subpoena noncompliance is a claim of executive privilege.
So that would leave the House with the one remaining legal option of launching an impeachment investigation, which brings us to the political side of things.
The reality Congress faces in separation of powers disputes, no matter how genuine or how principled, is that the public will almost certainly not rally around Congress if it perceives the dispute as more political food fight than anything else.
With no Democrats supporting the committee vote -- and I am guessing few, if any Democrats supporting a contempt citation by the entire House -- that's just what this will look like.
Moreover, as with Whitewater, it will be hard for House Republicans to explain exactly what the problem is. Fast and Furious appears to have been a disaster, but the Justice Department has shared documents freely on Fast and Furious.
The Justice Department sent a letter to Congress in February 2011 that mistakenly denied reports about what the Bureau of Bureau of Alcohol, Tobacco, Firearms and Explosives actually did in Fast and Furious. But the department has been forthcoming in sharing information about the events leading up to that letter, which Holder subsequently withdrew.
The fight, then, is not about a botched ATF operation or about a botched letter to Congress.
It is about how the attorney general reached his eventual conclusion that Fast and Furious was "fundamentally flawed" and decided how to respond to congressional and other requests for information about a program he now concedes should not have happened. Politically, this now begins to sound like Whitewater -- a story hardly anyone can follow, which really does not seem to implicate fundamental issues of public policy or official integrity.
(One caveat: The dynamics of this dispute could change if it turns out that Republican Committee Chairman Darrell Issa actually has information that the process of responding to Congress after the February 2011 letter entailed specific instances of corruption. Were he to bring such specific information to the attention of the White House, it would be consistent with past White House practice to release all documents related to that misconduct.)
A prolonged fight over Fast and Furious led by Republicans will do two things their presumptive presidential nominee, Mitt Romney, surely does not want. It will fill up air space that could otherwise have been spent discussing the economy, and it will intensify the appearance of congressional Republicans as the obstructionists blocking the changes Obama so famously promised.
It also must be said that Issa's past attacks on the administration amply feed a narrative that his subpoena is about politics, not principle.
Having months ago called Obama "one of the most corrupt presidents in modern times" -- in the face of such modern historical escapades as Watergate, Iran-Contra or the Terrorist Surveillance Program -- the chairman is not well-situated to play a Sam Ervin-like role, policing the presidency more in sadness than in angry partisanship.
In short, unless the House has specific information not yet disclosed suggesting the information it seeks is closely linked to the exposure of government malfeasance we have not yet heard about, this fight will end in a standoff or the parties will finally compromise.