‘Executive privilege’ claim looms ahead in Solyndra case

On Friday, citing “longstanding and important executive branch confidentiality interests,” White House counsel Kathryn Ruemmler refused a House panel’s demand for “all communications among White House staff and officials” relating to Solyndra.

Solyndra is one of the administration’s pet green energy firms. It received a $535 million loan guarantee from the Department of Energy before its top executives took the Fifth before Congress.

What’s been unearthed so far is embarrassing enough. The Obama administration seems to have rushed the deal through despite multiple warning flags and a lack of due diligence.

The now-bankrupt firm, whose largest shareholder is a major Obama fundraiser, spent some $1.8 million on lobbying while waiting for the guarantee.

President Barack Obama’s legal team hasn’t yet made an explicit claim of executive privilege, but that seems to be where this is heading.

Executive privilege is a judge-made doctrine said to flow from the president’s constitutional role. A privilege claim is stronger in national security matters and areas, like the pardon power, over which the Constitution gives the president sole discretion.

It’s weaker where, as here, the president’s alleged “confidentiality interests” involve shielding potential malfeasance from the taxpayers on the hook for Solyndra’s bankruptcy.

But since the courts are reluctant to wade into inter-branch disputes, the struggle for executive-branch transparency is often resolved in a tug of war between the White House and Congress.

In 1996, for example, President Bill Clinton claimed executive privilege over documents related to the Travelgate scandal, but a threat to cite the White House Counsel for contempt of Congress forced a climb-down.

A partial climb-down is possible here too, as pressure builds.

Meanwhile, as is so often the case in politics, the real scandal is what’s gone on in broad daylight. Solyndra is a perfect illustration of the dangers of “partnership” between government and business.

In this half-socialized, corporatist sector of privatized profit and socialized loss, we’re only “all in it together” if a federally favored company goes belly-up — as Solyndra did, sticking the taxpayer with the tab.

In the days after Obama’s inauguration, Jeffrey Immelt — the General Electric CEO who would go on to head up the president’s Council on Jobs and Competitiveness — celebrated the emerging new order.

“The global economy and capitalism will be ‘reset’ in several important ways — the interaction between government and business will change forever,” Immelt said.

With the federal government serving as “a regulator; an industry policy champion, a financier and a key partner,” Immelt wrote, this environment would present “an opportunity of a lifetime.”

That forecast was spot-on. As I noted in a recent column, the latest census figures show that in 2011, Washington, D.C., overtook Silicon Valley as the wealthiest metropolitan area in the United States. It may be hard times out there in flyover country, but it’s boom times for federal power brokers here in D.C.

Examiner columnist Gene Healy is a vice president at the Cato Institute and author of “The Cult of the Presidency.”

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