Rep. Darrel Issa (R-CA), the chairman of the House oversight committee investigating the Justice Department’s ill-conceived “Fast and Furious” program responsible for the 2010 murder of U.S. Border Patrol agent Brian Terry, appears to have lost his patience with the Obama administration.
In a letter to President Barack Obama, Rep. Issa harshly criticizes the White House’s decision to assert executive privileges in order to withhold subpoenaed documents from the Government Reform and Oversight Committee.
(Related: ‘I Have Superior Knowledge’: Holder Pressed on DOJ’s Involvement in Fast & Furious, Dismisses Evidence)
Rep. Issa’s letter says the decision to withhold certain documents raises two very serious issues:
Either you or your most senior advisers were involved in managing Operation Fast & Furious and the fallout from it … or, you are asserting a Presidential power that you know to be unjustified solely for the purpose of further obstructing a congressional investigation.
To date, the White House has steadfastly maintained that it has not had any role in advising the Department with respect to the congressional investigation. The surprising assertion of executive privilege raised the question of whether that is still the case.
As most Blaze already readers know, the Justice Department’s failure to turn over said documents prompted Rep. Issa’s committee last week to vote to hold Attorney General Eric Holder in contempt of Congress.
Not surprisingly, based on past behavior that is, the White House blew off the congressman’s letter.
“The congressman’s analysis has as much merit as his absurd contention that Operation Fast and Furious was created in order to promote gun control,” said White House spokesman Eric Schultz.
“The Courts have routinely considered deliberative process privilege claims and affirmed the right of the executive branch to invoke the privilege even when White House documents are not involved,” he added.
The House is scheduled to vote this Thursday, the same day the Supreme Court will rule on the constitutionality of the Affordable Care Act (“Obamacare”), on recommendations that Holder be held in contempt of Congress for failing to produce requested “Fast and Furious” documents.
(Related: House Oversight Committee Finds Eric Holder in Contempt in Fast and Furious Investigation)
“Rep. Steny Hoyer of Maryland, the House Democrats’ chief head counter, said he expected some Democrats to follow the National Rifle Association’s call for a ‘yes’ vote on contempt,” the Associated Press reports.
“The NRA has written to all members of Congress, saying the White House wanted to use the Operation Fast and Furious gun-tracking operation to advance a gun control agenda,” the report adds.
Rep. Hoyer didn’t specify the number of potential defectors.
Rep. Issa Letter to Obama Re: Executive Privilege
June 25, 2012The PresidentThe White HouseWashington, D.C. 20500Dear Mr. President:On June 19, 2012, shortly after leaving a meeting in the U.S. Capitol, Attorney GeneralEric Holder wrote to request that you assert executive privilege with respect to Operation Fastand Furious documents he is withholding from this Committee. The next day, Deputy AttorneyGeneral James Cole notified me in a letter that you had invoked executive privilege. TheCommittee received both letters minutes before the scheduled start of a vote to recommend thatthe full House hold the Attorney General in contempt of Congress for refusing to comply with itssubpoena.Courts have consistently held that the assertion of the constitutionally-based executive privilege — the only privilege that ever can justify the withholding of documents from acongressional committee by the Executive Branch — is only applicable with respect todocuments and communications that implicate the confidentiality of the President’s decision-making process, defined as those documents and communications to and from the President andhis most senior advisors. Even then, it is a qualified privilege that is overcome by a showing of the committee’s need for the documents. The letters from Messrs. Holder and Cole cited no caselaw to the contrary.Accordingly, your privilege assertion means one of two things. Either you or your mostsenior advisors were involved in managing Operation Fast & Furious and the fallout from it,including the false February 4, 2011 letter provided by the Attorney General to the Committee,or, you are asserting a Presidential power that you know to be unjustified solely for the purposeof further obstructing a congressional investigation. To date, the White House has steadfastlymaintained that it has not had any role in advising the Department with respect to the
The PresidentJune 25, 2012Page 2congressional investigation. The surprising assertion of executive privilege raised the questionof whether that is still the case.As you know, the Committee voted to recommend that the full House hold AttorneyGeneral Holder in contempt of Congress for his continued refusal to produce relevant documentsin the investigation of Operation Fast and Furious. Last week’s proceeding would not haveoccurred had the Attorney General actually produced the subpoenaed documents he said hecould provide. The House of Representatives is scheduled to vote on the contempt resolutionthis week. I remain hopeful that the Attorney General will produce the specified documents sothat we can work towards resolving this matter short of a contempt citation. Furthermore, I amhopeful that, consistent with assertions of executive privilege by previous Administrations, youwill define the universe of documents over which you asserted executive privilege and providethe Committee with the legal justification from the Justice Department’s Office of Legal Counsel(OLC).
U.S. Border Patrol Agent Brian Terry was killed in a firefight with a group of armedMexican bandits who preyed on illegal immigrants in a canyon west of Rio Rico, Arizona onDecember 14, 2010. Two guns traced to Operation Fast and Furious were found at the murder scene. The Terry family appeared before the Committee on June 15, 2011, to ask for answersabout the program that put guns in the hands of the men who killed their son and brother.Having been stonewalled for months by the Attorney General and his senior staff, the Committeeissued a subpoena for documents that would provide the Terry family the answers they seek.The subpoena was served on October 12, 2011.Internally, over the course of the next eight months, the Justice Department identified140,000 pages of documents and communications responsive to the Committee’s subpoena. Yet,the Department handed over only 7,600 of these pages. Through a series of accommodationsand in recognition of certain Executive Branch and law enforcement prerogatives, the Committee prioritized key documents the Department needed to produce to avoid contempt proceedings.These key documents would help the Committee understand how and why the JusticeDepartment moved from denying whistleblower allegations to understanding they were true; theidentities of officials who attempted to retaliate against whistleblowers; the reactions of senior Department officials when confronted with evidence of gunwalking during Fast and Furious,including whether they were surprised or already aware of the use of this reckless tactic, and;whether senior Department officials are being held to the same standard as lower-levelemployees who have been blamed for Fast and Furious by their politically-appointed bosses inWashington.I met with Attorney General Holder on June 19, 2012, to attempt to resolve this matter inadvance of the Committee’s scheduled contempt vote. We were joined by Ranking Member Elijah Cummings and Senators Patrick Leahy and Charles Grassley, respectively the Chairmanand Ranking Member of the Senate Committee on the Judiciary. The Department had previouslyidentified a small subset of documents created after February 4, 2011 — the date of its letter
The PresidentJune 25, 2012Page 3containing the false claim that no gunwalking had occurred — that it would make available tothe Committee. The Justice Department described this small subset as a “fair compilation” of thefull universe of post-February 4th documents responsive to the subpoena.During the June 19th meeting, the Attorney General stated he wanted to “buy peace.” Heindicated a willingness to produce the “fair compilation” of post-February 4th documents. Hetold me that he would provide the “fair compilation” of documents on three conditions: (1) that I permanently cancel the contempt vote; (2) that I agree the Department was in full compliancewith the Committee’s subpoenas, and; (3) that I accept the “fair compilation,” sight unseen.As Chairman of the primary investigative Committee of the U.S. House of Representatives, I considered the Attorney General’s conditions unacceptable, as would have my predecessors from both sides of the aisle. I simply requested that the Department produce the“fair compilation” in advance of the contempt vote, with the understanding that I would postponethe vote to allow the Committee to review the documents.The short meeting in the Capitol lasted about twenty minutes. The Attorney General leftthe meeting and, shortly thereafter, sent an eight-page letter containing more than forty citationsrequesting that you assert executive privilege. The following morning, the Deputy AttorneyGeneral informed me that you had taken the extraordinary step of asserting the privilege that isdesigned to protect presidential decision making.In his letter, the Attorney General stated that releasing the documents covered by thesubpoena, some of which he offered to the Committee hours earlier, would have “significant,damaging consequences.”
It remains unclear how — in a matter of hours — the AttorneyGeneral moved from offering those documents in exchange for canceling the contempt vote andending the congressional investigation to claiming that they are covered by executive privilegeand that releasing them — which the Attorney General was prepared to do hours earlier — would now result in “significant, damaging consequences.”
The Scope of Executive Privilege
Deputy Attorney General Cole’s representation that “the President has asserted executive privilege over the relevant post-February 4, 2011, documents” raised concerns that there wasgreater White House involvement in Operation Fast and Furious than previously thought.
Thecourts have never considered executive privilege to extend to internal Executive Branchdeliberative documents.Absent from the Attorney General’s eight-page letter were the controlling authoritiesfrom the U.S. Court of Appeals for the District of Columbia. As the court held in the seminalcase of
In re Sealed Case
Letter from U.S. Att’y Gen. Eric H. Holder, Jr. to the President (June 19, 2012), at 2.
Letter from Deputy U.S. Att’y Gen. James Cole to Chairman Issa (June 20, 2012).
The PresidentJune 25, 2012Page 4The privilege should not extend to staff outside the White House inexecutive branch agencies. Instead, the privilege should apply only tocommunications authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significantresponsibility for investigating and formulating the advice to be given thePresident on the particular matter to which the communications relate.
The D.C. Circuit established the “operational proximity test” to determine whichcommunications are subject to privilege.
made clear that it is “operational proximity to thePresident that matters in determining whether the president’s confidentiality interest isimplicated.”
In addition, even if the presidential communications privilege did apply to some of thesesubpoenaed documents,
made clear that “the presidential communications privilege is, at alltimes, a qualified one,” and that a showing of need could overcome it.
Such a need — indeed acompelling one — plainly exists in this case.The Justice Department has steadfastly maintained that the documents sought by theCommittee do not implicate the White House whatsoever. If true, they are at best deliberativedocuments between and among Department personnel who lack the requisite “operational proximity” to the President. As such, they cannot be withheld pursuant to the constitutionally- based executive privilege. Courts distinguish between the presidential communications privilegeand the deliberative process privilege. Both, the
court observed, are executive privilegesdesigned to protect the confidentiality of Executive Branch decision-making. The deliberative- process privilege, however, which applies to executive branch officials generally, is a commonlaw privilege that requires a lower threshold of need to be overcome, and “disappears altogether when there is any reason to believe government misconduct has occurred.”
The Committee must assume that the White House Counsel’s Office is fully aware of the prevailing authorities of
, discussed above, and
Judicial Watch v. Dep’t of Justice
If theinvocation of executive privilege was proper, it calls into question a number of public statementsabout the involvement of the White House made by you, your staff, and the Attorney General.Finally, the Attorney General’s letter to you cited numerous authorities from prior Administrations of both parties. It is important to note that the OLC opinions provided asauthorities to justify expansive views of executive privilege are inconsistent with existing caselaw.
In re Sealed Case
(Espy), 121 F.3d 729 (D.C. Cir. 1997).
Congressional Research Service, Presidential Claims of Executive Privilege: History, Law, Practice, and RecentDevelopments (Aug. 21, 2008).
365 F.3d 1108 (D.C. Cir. 2004) (holding that presidential communications privilege only applied to documents“solicited and received” by the President or his immediate advisers).
The PresidentJune 25, 2012Page 5
Remarks about White House Involvement in Fast and Furious
For the past sixteen months, Senator Grassley and I have been investigating OperationFast and Furious. In response to a question about the operation during an interview withUnivision on March 22, 2011, you stated that, “Well first of all, I did not authorize it. EricHolder, the Attorney General, did not authorize it.”
You also stated that you were “absolutelynot” informed about Operation Fast and Furious.
Later in the interview, you said that “theremay be a situation here in which a serious mistake was made and if that’s the case then we’ll findout and we’ll hold somebody accountable.”
From the early stages of the investigation, the White House has maintained that no WhiteHouse personnel knew anything about Operation Fast and Furious. Your assertion of executive privilege, however, renews questions about White House involvement.White House Press Secretary Jay Carney emphasized your denial that you knew aboutFast and Furious. Mr. Carney stated, “I can tell you that, as the president has already said, he didnot know about or authorize this operation.”
A few weeks later, Mr. Carney reiterated the point, stating, “I think he made clear . . . during the Mexican state visit and the press conferencehe had then that he found out about this through news reports. And he takes it very seriously.”
In an October 6, 2011 news conference, you maintained that Attorney General Holder “indicated that he was not aware of what was happening in Fast and Furious.”
Regarding your own awareness, you went on to state, “Certainly I was not. And I think both he and I would have been very unhappy if somebody had suggested that guns were allowed to pass through that couldhave been prevented by the United States of America.”
On March 28, 2012, Senator Grassley and I wrote to Kathryn Ruemmler, who serves asyour Counsel, to request that she grant our numerous requests to interview Kevin O’Reilly, amember of the White House National Security Staff. We needed Mr. O’Reilly’s testimony toascertain the extent of White House involvement in Operation Fast and Furious. In her response,Ms. Ruemmler advised us that the e-mail communications between Mr. O’Reilly and William Newell, the Special Agent in Charge of ATF’s Phoenix Field Division, did not reveal “theexistence of any of the inappropriate investigative tactics at issue in your inquiry, let alone anydecision to allow guns to ‘walk.’”
She further emphasized “the absence of any evidence thatsuggests that Mr. O’Reilly had any involvement in ‘Operation Fast and Furious’ or was aware of
Interview by Jorge Ramos, Univision, with President Barack Obama, San Salvador, El Salvador (Mar. 22, 2011).
The White House, Office of the Press Secretary, Press Briefing by Press Secretary Jay Carney (June 17, 2011).
The White House, Office of the Press Secretary, Press Briefing by Press Secretary Jay Carney (July 5, 2011).
Obama Defends Attorney General: Holder Faces Scrutiny over ATF's Fast and Furious GunOperation
, Oct. 7, 2011.
Letter from Hon. Kathryn Ruemmler, Counsel to the President, to Hon. Darrell E. Issa, Chairman, H. Comm. onOversight & Gov’t Reform, & Sen. Charles E. Grassley, Ranking Member, S. Comm. on the Judiciary (Apr. 5,2012).
The PresidentJune 25, 2012Page 6the existence of any inappropriate investigative tactics.”
Your assertion of executive privilegerenews concerns about these denials.Earlier this month, when House Judiciary Committee Chairman Lamar Smith asked theAttorney General when the Justice Department first informed the White House about thequestionable tactics used in Fast and Furious, he responded, “I don’t know.”
He informedChairman Smith that his focus was on “dealing with the problems associated with Fast andFurious,” and that he was “not awfully concerned about what the knowledge was in the WhiteHouse.”
Attorney General Holder has assured the public that he takes this matter very seriously,stating that “to the extent we find that mistakes occurred, people will be held accountable.”
Yet, he has described the Committee’s vote as “an election-year tactic.”
Nothing could befurther from the truth. This statement not only betrays a total lack of understanding of our investigation, it exemplifies the stonewalling we have consistently faced in attempting to work with the Justice Department. If the Attorney General had produced the responsive documentsmore than eight months ago when they were due, or at any time since then, we would not bewhere we are today.
At the heart of the congressional investigation into Operation Fast and Furious aredisastrous consequences: a murdered Border Patrol Agent, his grieving family, countless deathsin Mexico, and the souring effect on our relationship with Mexico. Members of the Committeefrom both sides of the aisle agree that the Terry family deserves answers. So, too, do AgentTerry’s brothers-in-arms in the border patrol, the Mexican government, and the American people. Unfortunately, your assertion of executive privilege raises more questions than itanswers. The Attorney General’s conditional offer of a “fair compilation” of a subset of documents covered by the subpoena, and your assertion of executive privilege, in no waysubstitute for the fact that the Justice Department is still grossly deficient in its compliance withthe Committee’s subpoena. By the Department’s own admission, it has withheld more than130,000 pages of responsive documents.I still believe that a settlement, rendering further contempt of Congress proceedingsunnecessary, is in the best interests of the Justice Department, Congress, and those most directlyaffected by Operation Fast and Furious. In light of the settled law that confines theconstitutionally-based executive privilege to high-level White House communications, I urge
Oversight of the U.S. Dep’t of Justice: Hearing Before the H. Comm. on the Judiciary,
112th Cong. (June 7, 2012)(Test. of U.S. Att’y Gen. Eric H. Holder, Jr.).
Guns Groups To Sue over New Obama Regulations, DOJ Vows To “Vigorously Oppose,”
, Aug. 3, 2011, http://www.foxnews.com/politics/2011/08/03/guns-groups-to-sue-over-new-obama-regulations-doj-vows-to-vigorously-oppose/#ixzz1yRMujaLY.
Contempt Charge for U.S. Attorney General Holder
, June 21, 2012,http://www.bbc.co.uk/news/world-us-canada-18528798.
The PresidentJune 25, 2012Page 7you to reconsider the decision to withhold documents that would allow Congress to complete itsinvestigation.In the meantime, so that the Committee and the public can better understand your role,and the role of your most senior advisors, in connection with Operation Fast and Furious, pleaseclarify the question raised by your assertion of executive privilege: To what extent were you or your most senior advisors involved in Operation Fast and Furious and the fallout from it,including the false February 4, 2011 letter provided by the Attorney General to the Committee?Please also identify any communications, meetings, and teleconferences between the WhiteHouse and the Justice Department between February 4, 2011 and June 18, 2012, the day beforethe Attorney General requested that you assert executive privilege.I appreciate your prompt attention to this important matter.Sincerely,Darrell IssaChairmancc: The Honorable Elijah E. Cummings, Ranking Member Committee on Oversight and Government ReformU.S. House of RepresentativesSenator Charles E. Grassley, Ranking Member Committee on the JudiciaryU.S. SenateSenator Patrick Leahy, ChairmanCommittee on the JudiciaryU.S. SenateThe Honorable Kathryn Ruemmler, Counsel to the President
Tags: You, Were, Involved, in, ‘Fast & Furious’, or, You, Are, Asserting, a, Presidential, Power, That, You, Know, to, be, Unjustified:, Rep., Issa’s, Scathing, Letter, to, President, Obama
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