Invoking executive privilege implicates the White House, lawmaker contends.
The chairman of the House oversight committee investigating White House involvement in the botched “gun-walking” program that led to the 2010 death of U.S. Border Patrol agent accused President Obama on Monday of downplaying his involvement in the program or intentionally obstructing the Congress' inquiry.
The letter from Rep. Darrel Issa, R-Calif., to Obama questioned the legal basis of the White House move to withhold subpoenaed documents from the Government Reform and Oversight Committee under protections afforded Obama by executive privilege. The Justice Department denied Issa's committee the subpoenaed documents last week, prompting the GOP-led committee to vote along party lines to hold Attorney General Eric Holder in contempt of Congress.
The full House is scheduled to consider the contempt citation this week. The White House contends it's legally entitled to withhold documents related to internal deliberations on policy and advisory discussions among Obama's senior advisers. It was the first time Obama, who pledged a new era of government transparency, has exerted executive privilege.
Issa said the assertion of executive privilege, which occurred after 16-months of negotiations between his committee and Justice officials over documents related to the gun-walking program called Fast and Furious, raised two troubling questions.
"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," Issa wrote. "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."
Issa's committee has subpoenaed documents it believes relevant to Justice and White House deliberations that led to a false Justice Department submission—in Holder's name—in February 2011 that Fast and Furious was not a gun walking operation. The committee had been told by whistle-blowers that Fast and Furious allowed large quantities of AK-47 firearms and variants to "walk" into Mexico. Two of those firearms were discovered at the scene where Border Patrol agent Brian Terry was killed near Rio Rico, Az., on Dec. 14, 2010.
The White House dismissed Issa'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. "Our position is consistent with Executive Branch legal precedent for the past three decades spanning Administrations of both parties, and dating back to President Reagan’s Department of Justice. 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.”
Issa has at times suggested Fast and Furious might have been initiated as part of a larger push for tighter U.S. gun control laws. The chairman largely abandoned that theory on the Sunday talk shows.
The Bush administration in its second term initiated the gun-walking program in an attempt to prosecute gun-runners and drug traffickers in Mexico. Under a larger program called Operation Gun Runner, an ill-fated program called Operation Wide Receiver was conducted from 2006-2007. It was riddled with inefficiency and poor inter-agency cooperation and communication. It yielded no arrests or indictments on Bush's watch. The Obama administration reviewed the dormant Bush-era cases and brought charges against nine people accused of low-level gun trafficking offenses. In October 2009, the Obama administration expanded efforts to pursue high-level Mexican drug and arms traffickers. Building on Wide Receiver, efforts at the Bureau of Alcohol, Tobacco, Firearms and Explosives greatly expanded the use of surveillance of firearms purchases. These efforts grew into Fast and Furious.
At the heart of Issa's inquiry is how much Justice and the White House knew about the origins of Fast and Furious, its scope and its operational ambitions.
As he did on the Sunday talk shows, Issa held out hope for a compromise over the disputed documents. The full House has never before voted to hold an attorney general in contempt of Congress.
"I remain hopeful that the Attorney General will produce the specified documents," Issa said. Short of that, the chairman urged Obama to "define the universe of documents over which you asserted executive privilege and provide the Committee with the legal justification from the Justice Department’s Office of Legal Counsel (OLC)."
Issa acknowledged Justice has provided in excess of 7,600 documents, but said the high-stakes dispute is now over those related to Justice's initial denial—nearly three months after agent Terry's death—that that Fast and Furious was a gun-walking operation.
"These key documents would help the Committee understand how and why the Justice Department moved from denying whistle blower allegations to understanding they were true; the identities of officials who attempted to retaliate against whistle blowers," Issa wrote, adding the committee also want to learn "whether senior (Justice) Department officials are being held to the same standard as lower-level employees who have been blamed for Fast and Furious by their politically-appointed bosses in Washington."
Issa also asked Obama to explain "what extent were you or your most senior advisers involved in Operation Fast and Furious and the fallout from it" and sought documents related to "any communications, meetings, and teleconferences between the White House and the Justice Department between February 4, 2011 and June 18, 2012, the day before the Attorney General requested that you assert executive privilege."
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