August 16, 2012
By LARRY MARGASAK Associated Press
The Republican-run House recently asked a federal court to enforce a subpoena against Attorney General Eric Holder, demanding that he produce records on a bungled gun-tracking operation known as Operation Fast and Furious.
The lawsuit asked the court to reject a claim by President Barack Obama asserting executive privilege, a legal position designed to protect certain internal administration communications from disclosure.
The failure of Holder and House Republicans to work out a deal on the documents led to votes in June that held the attorney general in civil and criminal contempt of Congress. The civil contempt resolution led to the August 13 lawsuit.
Holder refused requests by the House Oversight and Government Reform Committee to hand over — without preconditions — documents that could explain why the Justice Department initially denied in February 2011 that a risky tactic was used to allow firearms to “walk” from Arizona to Mexico.
Federal agents lost track of many of the guns. The operation identified more than 2,000 illicitly purchased weapons, and some 1,400 of them have yet to be recovered.
The department failed to acknowledge its incorrect statement for 10 months.
“Portentously, the (Justice) Department from the outset actively resisted cooperating fully with the committee’s investigation,” the lawsuit said.
“Among other things, the department initially declined to produce documents; later produced only very limited numbers of documents in piecemeal fashion; refused to make available to the committee certain witnesses; and limited the committee’s questioning of other witnesses who were made available,” it said.
The Justice Department previously said that it would not bring criminal charges against its boss. Democrats have labeled the civil and criminal contempt citations a political stunt.
In response to the lawsuit, Justice Department spokeswoman Tracy Schmaler said, “We were always willing to work with the committee. Instead the House and the committee have said they prefer to litigate.”
Numerous lawmakers said this was the first time a Cabinet official had been held in contempt.
The lawsuit asked that:
—The executive privilege claim by Obama be declared invalid.
—Holder’s objection to the House records subpoena be rejected.
—The attorney general produce all records related to the Justice Department’s incorrect assertion in early 2011 that gun-walking did not take place.
The administration’s position reciting the words “executive privilege” rests entirely on a common law privilege known as the “deliberative process privilege” and “is legally baseless,” says the lawsuit.
Historically, there are two main types of executive privilege. One privilege, for “presidential communications,” only covers the president and the work of top aides preparing advice for the president.
The other, known as “deliberative process privilege,” covers a much wider category of administration officials, even if they weren’t working on something for the president specifically. Presidents are required to have a stronger argument to justify keeping secrets under this broader authority, which can involve documents they never saw or were even intended to see.
A federal appeals court has ruled that this broader privilege is easier for Congress to overcome and it “disappears altogether when there is any reason to believe government misconduct has occurred.”
The lawsuit said the documents “would enable the committee (and the American people) to understand how and why the department provided false information to Congress and otherwise obstructed the committee’s concededly legitimate investigation.”
It challenged the executive privilege claim on several legal grounds, contending it was asserted indirectly by the deputy attorney general in a letter to Congress, and that the documents do not involve any advice to the president. The department’s actions do not involve core constitutional functions of the president, the suit said.
The suit contended the administration’s position, if accepted, “would cripple congressional oversight of executive branch agencies....”
In past cases, courts have been reluctant to settle disputes between the executive and legislative branches of government.
Given recent experience, the Republican-controlled committee’s lawsuit could result in a compromise or an appeal by the losing side.
In 2008, a federal judge rejected the George W. Bush administration’s position that senior presidential advisers could not be forced to testify to the House Judiciary Committee. The decision was regarded as vindication of Congress’s investigative powers.
But the ruling also said that Congress’ authority to compel testimony from executive branch officials was not unlimited. The Bush administration appealed, but after Barack Obama became president in 2009, the newly elected Congress and the administration reached a settlement. Some of the documents at issue in the case were provided to the House and former White House counsel Harriet Miers testified.
The battle over congressional subpoenas for documents and testimony arose when Congress looked into whether political motives and White House involvement had prompted the dismissal of U.S. attorneys.
Gun-walking long has been barred by Justice Department policy, but federal agents in Arizona experimented with it in three investigations during the George W. Bush administration before Operation Fast and Furious. The agents in Arizona lost track of several hundred weapons in the three earlier operations.