President Barack Obama’s administration’s letter proclaiming executive privilege over all other documents related to Operation Fast and Furious contains “highly questionable legal analysis,” according to a memo from Republican Study Committee obtained by Red Alert Politics.
The memo, authored by professional staff member Derek Khanna, confirms House Oversight Committee Darrell Issa’s suspicions that that the White House does not have the authority to claim executive privlege over the relevant post-February 4, 2011 documents pertaining to Fast and Furious. Therefore, the Department of Justice (DOJ) does in fact have to continue cooperating with House Republicans’ requests for additional documents or likely find itself in court.
On Wednesday June 20, Deputy Attorney General James Cole sent a letter to Issa (R-Calif.) and House Oversight Ranking Minority member Elijah Cummings (D-Md.) just minutes before the Oversight committee’s scheduled contempt vote announcing that the President had granted Attorney General Eric Holder’s June 19 request for executive privilege.
In an eight page letter to the President on June 19 Holder claims DOJ has made “various reforms” in response to the disastrous operation that took border patrol agent Brian Terry’s life the department. Among other, legal reasons for requesting executive privilege, the letter claims that further investigation to Operation Fast and Furious would result in “media inquires that would have significant damaging consequences” to the executive branch, thus the President should intervene.
It also claims that the Oversight Committee hasn’t proven that oversight of the management of the DOJ is a “legislative ” function of Congress. Basically, Holder claims that even if Issa’s concerns about the mismanagement of Justice were true, it’s none of Congress’ business.
The House Oversight Committee proceeded to vote Holder in contempt last despite the eleventh hour letter from the Obama administration granting the DOJ executive privilege, saying the vote was related to Holder’s pre-privilege refusals to turn over documents related to the Congressional investigation.
“We’re past that part of the discovery, relative to contempt. We know that there’s lot of wrong things,” Issa said Sunday on ABC’sThis Week.“What we’re talking about now, when we get lied to, when the American people get lied to, there can’t be oversight when there’s lying. The Supreme Court held pretty clearly, there cannot be executive privilege over criminal cover-up. Or cover-up of crime. Lying to Congress is a crime.”
Issa stopped short of saying the Obama administration was involved in a Fast and Furious cover up on the show, however the following day, Monday June 25, Issa sent a letter to President Obama alleging that “either you or your most senior advisors were involved in managing operation Fast and 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. Issa points out in the letter that the White House has repeatedly claimed no knowledge of Operation Fast and Furious, so the President’s assertion of executive privilege “renews questions about White House involvement.”
Issa’s six page letter asks the President, who is a constitutional lawyer by trade, to thus clarify the reasoning as well legal precedent for executive privilege. In absence of a response from the President or the DOJ, the Republican Study Committee, the caucus of House conservatives that performs independent research, will issue the memo leaked to Red Alert Politics to all Republican members of Congress and their staffs tomorrow exposing substantial legal issues with the Obama administration’s justifications for claiming executive privilege.
The memo argues that Attorney General Holder’s request for executive privilege “almost exclusively relies upon memos from the Office of Legal Counsel (OLC), not upon precedent from courts, the Constitution, Federalist Papers, or from statute.”
It also takes aim at Holder’s claims that documents pertaining to Fast and Furious fall “squarely within the scope of executive privilege,” noting that recommendations from the Office of Legal Counsel and the personal opinions of past Attorney Generals in no way make the request legal or acceptable – especially when those opinions are inconsistent with legal precedent and the law. Even the previous court cases cited by the AG’s office in don’t actually validate the Obama administration’s claims, the memo charges.
The memo goes on to call the “mismanagement” of the federal government “pervasive and endemic” and points out that it is impossible for Congress to provide necessary oversight of and checks and balances on the Executive branch “when the DOJ is allowed to provide false information.”
“This behavior in any other context would likely be found to constitute ‘obstruction of justice,’ ” Khanna writes.
The memo ends by saying that if executive privilege is allowed in this case it will be a “dangerous and unprecedented expansion of this limited doctrine” that RSC does not believe would hold up in court.
After Thursday’s scheduled contempt vote in the House of Representatives, the next step in pursuing the investigation into the background of Fast and Furious would be for the Attorney General’s office to sue the involved parties. However, because the involved parties in this case are the Attorney General and the Attorney General’s office, the Department of Justice would clearly decline to take legal action. The only other avenue would be for Congress to take the issue to court, an option Issa did not rule out in his appearance on This Week.
“We are seeing documents that we know to exist that are about Brian Terry—Terry’s murder and get to the truth,” Issa said. “I hope they [White House] don’t get involved. I hope it stays with the Justice. Ultimately Justice lied to the American people on February 4th and didn’t make it right for 10 months.”
However, legal scholar Josh Chafetz argued last week in the Washington Post that Congress is unlikely to take the investigation to the next level by taking it to court because the litigation process would take years.
But a source familiar with the contempt proceedings told Red Alert Politics he thinks the President’s improper use of executive privlege will in fact be challenged in court by Congress after Thursday’s contempt vote unless the President agrees to waive executive privilege. Thus the source said he believes the President is likely to strike a last-minute deal in order to avoid a messy legal battle that could extend well into his second term if Obama is reelected and would seriously limit future use of executive privilege.
Unlike the similar 2008 court case involving White House Counsel Harriet Miers and White House Chief of Staff John Bolten that some people are using as a comparison for the current proceedings, former President George W. Bush was already out of office when the court proceedings began. If President Obama wins reelection in November, the Fast and Furious scandal could cast a cloud over the entirety of his final term in office, which the source pointed out the President would or should want to avoid, particularly if the White House had no knowledge of or involvement in Operation Fast and Furious as it claims.
The House will vote to hold Attorney General Eric Holder in contempt Thursday afternoon. Read more on the background of the Oversight committee’s investigation and watch the contempt vote live at the Committee on Oversight and Government Reform’s “Operation Fast and Furious” website.
