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Posted by on Jun 20, 2012 in Law, Politics | 8 comments

Obama Invokes Executive Privilege on Fast and Furious

President Barack Obama has now joined the long list of Presidents who’ve invoked executive privilege — this time over an election-year investigation pushed most strongly by House Oversight Committee chairman Rep. Darrell Issa, R-California:

President Barack Obama has asserted executive privilege over documents sought by a House committee investigating the botched Fast and Furious gun-running sting, according to a letter to the panel Wednesday from Deputy Attorney Gen. James Cole.

The move means the Department of Justice can withhold the documents from the House Oversight Committee, which was scheduled to consider a contempt measure Wednesday against Holder.

“I write now to inform you that the president has asserted executive privilege over the relevant post-February 4, 2011, documents,” Cole wrote in a letter to committee chairman Rep. Darrell Issa, R-California.

“We regret that we have arrived at this point, after the many steps we have taken to address the committee’s concerns and to accommodate the committee’s legitimate oversight interests regarding Operation Fast and Furious,” Cole continued. “Although we are deeply disappointed that the committee appears intent on proceeding with a contempt vote, the department remains willing to work with the Committee to reach a mutually satisfactory resolution of the outstanding issues.”

See Holder’s letter requesting privilege (.PDF)

Wednesday’s development further heightened the drama of a high-profile showdown between Issa and Holder over the committee’s demand for the Department of Justice to turn over more documents about the Fast and Furious program.

The hearing by Issa’s panel to consider the contempt measure had yet to begin 15 minutes after its scheduled start, following the release of Cole’s letter to the committee.

Issa and Holder met Tuesday evening in what was billed as a final effort to resolve their differences. However, the meeting amounted to little more than a reiteration of the positions the two staked out in an exchange of letters the previous week, and Issa said afterward the committee would proceed with its contempt vote if Holder failed to turn over the documents in question.

Holder told reporters that he offered to provide the documents on the condition that Issa gave his assurance that doing so would satisfy two committee subpoenas and resolve the dispute.

See letter to Issa from Deputy Attorney General (.PDF)

Expect this issue to become another political football on cable and talk radio and among partisans in a 24/7 battle that is accentuated during a high-stakes, most likely close election year.

Wednesday’s development further heightened the drama of a high-profile showdown between Issa and Holder over the committee’s demand for the Department of Justice to turn over more documents about the Fast and Furious program.

The hearing by Issa’s panel to consider the contempt measure had yet to begin 15 minutes after its scheduled start, following the release of Cole’s letter to the committee.

Issa and Holder met Tuesday evening in what was billed as a final effort to resolve their differences. However, the meeting amounted to little more than a reiteration of the positions the two staked out in an exchange of letters the previous week, and Issa said afterward the committee would proceed with its contempt vote if Holder failed to turn over the documents in question.

Holder told reporters that he offered to provide the documents on the condition that Issa gave his assurance that doing so would satisfy two committee subpoenas and resolve the dispute.

See letter to Issa from Deputy Attorney General (.PDF)

“They rejected what I thought was an extraordinary offer on our part.,” Holder said. Asked about whether Issa was open to resolving the issue before the committee meets Wednesday, Holder said: “I think we actually are involved more in political gamesmanship” instead of a sincere effort to get the requested documents.

Here’s a Wikipedia on executive privilege which details it and its use by various presidents.

First Read has this:

Also, the White House points out to reporters that President George W. Bush asserted executive privilege six times, while Bill Clinton did so in 14 instances, “both of whom protected the same category of documents we’re protecting today (ie after-the-fact internal Executive Branch materials responding to congressional and media inquiries – in this case from the Justice Department). In fact, dating back to President Reagan, Presidents have asserted executive privileged 24 times. President Obama has gone longer without asserting the privilege in a Congressional dispute than any President in the last three decades.”

But since when did consistency matter in today politics? Partisans jettison principles and pretend like the other side is the only one to have done something all the time. Don’t expect to hear much mention of these other cases among those who blast Obama; don’t expect to hear some of the more sleazy reasons why Presidents used executive privilege by those defending Obama.

Both parties will dig in their heels and it becomes one more big issue. The question will be: who can win the war of public opinion Fast and Furious and the use of executive privilege?

Will the White House be more adept at explaining it in a way that gains public support (it did not exactly do a stellar job on health care reform)?

FOOTNOTE: If the contempt vote against Holder goes strictly on party line it will lose its credibility with some swing voters. They’ll need a good dose of Democrats.

The Guardian gives this good summary:

10.32am: By way of background: the House committee’s investigation into Fast and Furious – a gun-running sting involving smuggled weapons across the US border to Mexican drug cartels that went badly wrong – has been continuing since early 2011, with Republicans alleging a cover-up by Eric Holder and the justice department.

Fast and Furious was designed to track illegal gun purchases along the Southwest border between Mexico and Arizona, to trace the guns to drug cartels. Disasterously, some 1,700 guns used in the operation were lost and some of the weapons have subsequently been discovered at crime scenes in Mexico. Two guns connected to Fast and Furious were found after a US Border Patrol agent was killed in Tucson in 2010.

10.15am: The White House has blocked access to documents detailing the government’s response to Operation Fast and Furious, the botched gun-running sting, claiming executive privilege and attempting to thwart efforts by Republicans in Congress to hold US attorney general Eric Holder in contempt.

Darrell Issa – the Republican congressman who chairs the House oversight and government reform committee investigating Fast and Furious – had threatened Holder with contempt of Congress for what he regarded as a slow response by the justice department to comply with the committee’s demands.

Today Holder and the Department of Justice have responded by successfully applying to the White House for a claim of executive privilege. Here’s a copy of the letter Holder sent to the White House asking for executive privilege to be asserted over the documents requested by Issa’s commitee, which relate not to Fast and Furious iteself but to the department’s response to the investigation.

Isaa and the committee are holding a hearing this morning, and we’ll be following developments.

PREDICTION: Republicans will frame this as a corruption issue, saying the administration is covering it up and knowledge in the administration ran deep.

The question in the end is how voters and the mainstream media (not blogs) finally perceive what is going on.

Expect Holder to be voted to be held in contempt — on a party line vote.

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Copyright 2012 The Moderate Voice
  • slamfu

    Ah the good ole Executive Privilege. Kissing cousins to taking the 5th, i.e. – you messed up and you need to CYA. What a racket politicians have to dodge accountability.

  • RP

    I doubt most Americans are following this issue and many probably do not care one way or the other.

    Some will say it is just another example of the right against the left or left against the right.

    For the few that are following it and support Issa, it will be an example of the President being involved and knowing what was happening and covering up the issue during the election year. Trying to keep it from blowing up in his face. After November he can care less and anything coming out will be a non issue.

    But the real problem is a border officer getting killed by a weapon released by our own government and no one being held accountable. But should we be surprised?

    Like slamfu says “you messed up and you need to CYA”

  • DaGoat

    Hard to know who to believe here, as Issa and Holder both have partisan motivations. As RP says though the real shame is our government screwed up and contributed to getting a border agent killed, no one will be held responsible and most people won’t care.

  • CStanley

    Before this latest development i thought this was mostly partisan nonsense, albeit over a serious screwup that had reaultes in the death of a border agent (and presumably some innocent and not so innocent Mexican nationals.)

    Now i think it is more than that. Not just because the withholding of documents seems suspicious in and of itself (though there is that) but because of what the subpeona specifically involved and the sequence of how the DOJ and WH dealt with it.

    This subpeona wasn’t directly about the FF program, it was about the letter that DOJ had submitted to Congress and later withdrew , saying it was factually inaccurate but they didn’t know the source of the errors.

    Now, in probing that, Holder went to the brink of being cites for contempt, then tried to cut a deal with Issa (telling him he’d let him view the documents in question on the condition that the oversight committee woukd specify in advance that they wouldn’t request any further documents.) then after that offer is rejected, THEN the WH steps in to invoke EP (after they already offered to let the committee head see the documents?)

    Sorry, that makes no sense and stinks to high heaven of a coverup or at least stonewalling.

  • CStanley

    For those who aren’t up to speed, thiis is what i was referencing:
    http://www.npr.org/blogs/thetwo-way/2011/12/02/143067851/justice-withdraws-inaccurate-fast-and-furious-letter-it-sent-to-congress

    If anyone from DOJ knowingly falsified information supplied to Convress in the course of an oversight investigation, that’s a crime. DOJ has already admitted that the information was false and now they have played out their hand in full to prevent discovery of how the inaccuracies ended up in that letter.

  • davidpsummers

    Executive privilege is a fundamental issue in how checks and balances work (after all, the executive can’t subpoena Congress). Executive privilege has also been used to to hid things. Subpoena’s are one way in which Congress excises it constitutional obligation to oversight. They have also been used in fishing expeditions. In the end there are two things to remember…

    1) It is possible that this is a fishing expedition by Republicans _and_ that the administration is hiding something.
    2) Our modern political discourse is generally incapable to handling complexity and nuance.

  • The_Ohioan

    Political, partisan, and phony? First, the bullets from the agents killed cannot be clearly connected to the guns found by them which were F&F weapons. Second, Boehner and Cantor have been ignoring calls for House censure of Holder since January – curious.

    There are wheels within wheels here, folks. For some perspective –

    Article written by a Democratic member of – Academy of Criminal Justice Sciences (life member), American Civil Liberties Union, American Society of Criminology, National Council of Editorial Writers, National Society of Newspaper Columnists, and Society of ChristianPhilosophers

    http://viewer.zmags.com/publication/68ac18a2#/68ac18a2/68

    Issa and the NRA:

    http://www.examiner.com/article/issa-promises-nra-that-f-f-investigation-will-hold-doj-officials-accountable

    It’s hard to tell what is real and what is phony outrage on either side, but this is shaping up to being one of those consitutional crises that seemingly arise out of the ether. Zeitgeist – it’s worrisome.

  • DaGoat

    Looks like everybody’s lining up in their expected roles.

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