Just minutes before the House Oversight & Government Reform Committee was scheduled to begin a meeting expected to end with a contempt citation against Attorney General Eric Holder regarding the withholding of documents related to the “Fast And Furious” investigation, the Justice Department threw a curve ball:
(CBS News) The White House granted Attorney General Eric Holder with executive privilege regarding Fast and Furious. Regardless of the action, Rep. Darrell Issa, R.-Cal., head of the Oversight and Government Reform Committee said he is moving forward with a contempt vote of the attorney general.
At issue is documents over the Arizona gunwalking program that put guns in the hands of illicit gun purchasers as a way to track Mexican smuggling cartels. As a result of the program, hundreds of guns showed up in Mexico and one was found at where a U.S. border agent was killed. Issa and his counterpart in the Senate, Charles Grassley, R-Iowa., opened an investigation into the case more than a year ago.
A meeting held Tuesday evening between the head of the Oversight and Government Reform Committee, Rep. Darrell Issa, R-Calif., and Holder to work out an agreement over hadnging out documents pertaining to the Fast and Furious case has ended without an agreement being reached. As a result, Rep. Issa promised to move forward with the contempt vote.
Issa told reporters after the meeting, “If we receive no documents, we’ll go forward. If we receive documents we will evaluate them.”
In a letter to Issa sent later Tuesday evening, Deputy Attorney General James Cole wrote, “We regret that the Committee rejected our proposal. Our offer would have provided the Committee with unprecedented access to these documents, many of which are not covered by the Committee’s subpoenas in this matter.”
“We’re not looking to hold people responsible. We’re looking for document production,” Issa said.
Issa’s committee is looking for documents dating from February to December 2011 on how the Justice Department handled the Fast and Furious case.
Holder says he made Holder an “extraordinary” offer that includes documents, a briefing on those documents and answers to questions Issa and his committee might have.
One catch appears to be that the deal would have required agreement by the committee that this would be the end of the documents that would be requested. In any event, asserting Executive Privilege takes this matter up several notches, especially since there’s the not insignificant question of whether Executive Privilege even applies to the documents requested. More to the point, though, the assertion of Executive Privilege is not going to stop the Committee from going ahead with the Contempt vote and, indeed, only appears to have increased Republican resolve on that matter.
From the White House’s point of view, it’s rather odd that they would assert Executive Privilege over documents that were requested some eight months ago and which, as recently as twelve hours ago, the Justice Department said that it was willing to provide the Committee access, at least under limited circumstances. From a political point of view, it seems to reinforce the idea that they were withholding the documents because they contained damaging information about the ongoing scandal. This is especially true since Executive Privilege has generally only been asserted in cases where the documents involve communications with the President and his staff. Up until now, the Justice Department and the White House have both said that the White House was not involved in the Fast And Furious operation or in the internal investigation that occurred after it started to fall apart. Does the assertion of Executive Privilege now mean that is true?
The more important question, though, is exactly what the President is asserting is covered by the privilege. It’s not generally acceptable to point to a pile of documents and claim that they are privileged without providing a specific basis for why they are so privileged. This typically requires creation of a Privilege Log that details what documents are being withheld and the reason that they are being withheld, something that the Justice Department itself has yet to do despite the fact that the subpeona is eight months old. So far, the White House has not sent any communication to the House or to the Committee asserting the privilege and detailing the documents that it asserting the privilege over. It would seem rather absurd for the privilege to be claimed over all 11,000 documents that have been withheld, so one would think that the White House will document its privilege claim soon so that it can be evaluated, by an independent body if necessary.
We’ve got ourselves a good old fashioned Separation of Powers showdown here.
Here’s the letter that the Justice Department sent to the Committee this morning:
