Todd Gaziano has outlined at the Foundry the legal doctrine of executive privilege that President Obama has asserted in the congressional investigation of Operation Fast and Furious. The most important part of that doctrine to understand is that a President cannot assert executive privilege for the purpose of hiding wrongdoing by Administration officials.
Fast and Furious began in September 2009 and was not shut down until January 2011. It was a reckless law enforcement operation that led to thousands of weapons ending up in the hands of dangerous criminals and major drug cartels. This “felony stupid” operation, as it has been referred to, was not shut down until two weapons that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) had allowed straw buyers to purchase and take across the Mexican border were found at the murder scene of Border Patrol agent Brian Terry on December 14, 2010. This conduct, as testimony from several ATF whistleblowers showed, was against all ATF rules and procedures. The well-known rule at the Department of Justice (DOJ) drummed into all prosecutors is that you never let guns or drugs get away from you in any undercover operation.
Representative Darrell Issa (R) has conducted several hearings, interviewed 24 fact witnesses (many of them whistleblowers), sent the DOJ over 50 letters, and issued two subpoenas for documents. The DOJ has turned over only a small fraction of the documents being sought, and many of those turned over were so full of redactions that it was “unnecessarily difficult and sometimes impossible…to investigate decisions made by Department officials,” according to Issa.
The House Oversight and Government Reform Committee has received much of its relevant information from whistleblowers, not the DOJ, including copies of six Operation Fast and Furious wiretap applications that Attorney General Eric Holder refused to provide. Contrary to the sworn position taken by Holder that the “inappropriate tactics” (as he now admits) in Operation Fast and Furious “were not initiated or authorized by Department leadership in Washington,” those wiretap applications as well as other internal e-mails show that political appointees in the leadership, such as Assistant Attorney General Lanny Breuer, were well aware of the operation and the dangerous tactics being used.
Yet Holder has refused to answer—or provide the documents that would answer—the critical question being investigated by the House Committee: Who were the senior officials at DOJ who were told about and/or approved this irresponsible operation, and what was the law enforcement rationale for doing so? As Gaziano points out, executive privilege “does not shield” information and documentation that would provide the answer to those questions.
For almost a year and a half, the DOJ has unlawfully refused to provide Congress with what it is constitutionally entitled to when it is exercising its oversight function. The latest information obtained from the leaked wiretap applications indicates that Holder and his deputies have been misleading Congress on these very issues. As former ATF acting director Kenneth Melson testified, “it appears thoroughly to us that the [DOJ] is really trying to figure out a way to push the information away from their political appointees at the department.”
Holder attempts to mislead the President on this issue in his June 19 letter requesting that President Obama assert executive privilege. Holder says that he is only asking for executive privilege to shield any information “concerning [DOJ’s] response to congressional oversight and related media inquiries,” since Issa supposedly narrowed his request to those documents. But Issa offered to narrow his committee’s request only if Holder would agree to finally quit stonewalling.
Holder refused to agree to that accommodation, so all of the other information being sought under the outstanding subpoenas about the planning, initiation, approval, and conduct of Operation Fast and Furious is still outstanding and isn’t even covered under Holder’s request—or the apparent grant of privilege provided by President Obama (and there is no reasonable basis for asserting executive privilege on something as routine as responding to media inquiries).
In any event, the President’s attempt to assert executive privilege is just the latest move in the Administration trying to prevent any political appointees within the most politicized DOJ in our lifetime from having to take responsibility for the serious mistakes in judgment made in this operation, mistakes that have killed a U.S. agent and many Mexican citizens.
It would be a rank abuse of the Constitution for the President to use executive privilege simply to prevent political embarrassment and to shield political appointees from the consequences of their ill-considered and careless judgment and actions.