On June 20, moments after Congressman Darrell Issa’s House Oversight and Government Reform Committee recommended that Attorney General Eric Holder be held in contempt of Congress (for failing to produce some 130,000 documents requested by the committee as part of its investigation of Operation Fast and Furious), President Barack Obama invoked executive privilege, shielding the documents from production. As a practical matter, the President’s assertion of the privilege puts the documents beyond committee reach for years to come, compelling Congress to sue the President to obtain a court order on production. Although Chairman Issa’s resolution directs the U.S. Attorney for the District of Columbia to commence contempt proceedings against Holder, the action of the President will cause the Justice Department to refrain from taking any action against Holder.
A President who has repeatedly claimed that his administration would be transparent has now taken the extraordinary step of denying a committee of Congress the power to investigate a blatantly illegal federal gunrunning operation that was so poorly managed that it caused thousands of weapons to be obtained by criminals and indirectly caused the death of Brian Terry, a U.S. Border patrol agent. Operation Fast and Furious came to light in early 2011 when federal investigators were revealed to have permitted thousands of guns to be given to criminal arms traffickers operating on the U.S.-Mexican border, allegedly to permit the weapons to be tracked back to those in charge. The ill-conceived and executed plan improved the lot of the arms traffickers and produced no major arrests.
Early the week of June 25 the full House of Representatives will vote on whether to find Eric Holder in contempt of Congress. The administration’s argument for executive privilege is on particularly shaky ground in no small measure because the administration has not invoked the privilege for over a year and has supplied documents revealing elements of executive branch deliberation on the issue, thus making its late invocation of the privilege suspect.
In the face of President Obama’s invocation of executive privilege, the House is not powerless to take further unilateral action, although it is doubtful if it has the political courage to do so. Congress can direct its sergeant-at-arms to arrest Holder and detain him in the Capitol jail while the House tries Holder on contempt charges. Congress could commence impeachment proceedings against Holder. It could simultaneously commence civil litigation in federal court to challenge the President’s assertion of privilege but ultimate appellate resolution of that fight could be years away.
The federal courts have recognized executive privilege as a subset of the separation of powers doctrine. Executive privilege is ordinarily invoked predicated on one or more of the following rationales: (1) the need to keep presidential communications confidential to preserve the autonomy of a separate but equal branch of the federal government; (2) the need to keep presidential communications confidential in aid of the President’s deliberative processes; (3) the need to protect national security or foreign relations; and (4) the need to avoid interference with the conduct of an ongoing law enforcement operation.
In his correspondence to the President urging invocation of the privilege to block congressional demands for documents related to the botched Fast and Furious Operation, Holder appears to have relied on two of the above justificatory rationales, the second and the fourth. Although the President is said to have invoked the privilege, the correspondence to Chairman Issa explaining that the privilege had been asserted came not from Obama or from White House Counsel but from Deputy Attorney General James Cole. That led Chairman Issa to conclude that the privilege had not been properly asserted.
If the executive branch and Congress fail to negotiate a resolution of the dispute, a suit will likely follow. The deliberative process and law enforcement rationales for the privilege are qualified, not absolute, meaning that they do not serve as a total bar to production of documents. Moreover, each rationale is trumped by evidence of corruption or abuse of power. Here, Operation Fast and Furious was unlawful by design and botched from the start, even by the Attorney General’s own admission. The need for identifying who in leadership at the Department of Justice and, perhaps, the White House, knew of, authorized, or condoned the operation is thus critical to affix legal blame, determine appropriate charges and punishments, ensure that there is no resort to the same methods in future, and assess what legislative measures should be taken to prevent waste of taxpayer funds. In short, because Congress must fund the operations of the Department of Justice, it has oversight responsibilities to ensure that taxpayer dollars are appropriately expended to enforce the laws. In fulfillment of that oversight function, it must be able to track how tax dollars are expended, and it must be able to uncover corruption and determine how to delimit funding to prevent continuation of corrupt practices. It must also be able to exercise its impeachment power to remove those in the executive branch responsible for unlawful acts and practices. There can be little doubt, therefore, that the need for Congress to exercise its oversight to uncover the nature and extent of executive branch corruption exceeds any qualified claim of privilege that the President asserts to protect from disclosure deliberations related to Operation Fast and Furious or ongoing law enforcement related to it.
Moreover, the Courts and Congress have various means to guard sensitive operation details from disclosure, including in camera review of documents, when revelation of contents could jeopardize lives or frustrate law enforcement. Those means provide an obvious alternative to an outright refusal to produce.
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When carefully assessed, President Obama’s assertion of executive privilege lacks a sound justification and impedes the oversight function of Congress. With the President’s intervention, the Attorney General and the President are now locked together as one, demanding that acts of wrong doing not be exposed and vetted by Congress and that, instead, they be trusted to operate in secrecy. A government of law and of accountability demands that the facts be revealed and that those responsible for wrong doing be identified, prosecuted, or impeached.
© 2012 Jonathan W. Emord - All Rights Reserved