An Arrogant and Lawless Cover-Up
July 23, 2012
Few principles are more important to our constitutional scheme than the separation of powers, which is precisely why President Obama’s bogus assertion of executive privilege to thwart Congress’ investigation into Fast and Furious is so inexcusable.
Executive privilege is an important safeguard against congressional overreach and to preserve the separation of powers. The inherent right of the executive to protect highly sensitive information has long been recognized, and the privilege was judicially established during the Watergate era.
As such, Congress should not go on fishing expeditions against a president to score political points. But neither should a president assert the privilege to obstruct a legitimate investigation when there appears to be no colorable claim to the privilege. This trivializes the privilege and the separation of powers it is designed to protect.
Legal experts agree that the privilege applies to communications to which the president or an adviser acting on his behalf is a party. But they disagree about whether it applies to internal communications within executive agencies when neither the president nor his representative were involved in those communications.
As the communications for which the privilege is being asserted here were reportedly internal Justice Department communications, many view the privilege claim dubiously.
But even when the privilege is applicable, it is qualified and can be overcome when Congress demonstrates it has a substantial need for the information it seeks. In this case, Congress is seeking relevant information from the Justice Department, which it has been trying to obtain for more than a year.
At every turn, Attorney General Eric Holder has stonewalled and obstructed congressional investigators. He is withholding thousands of pertinent documents, using an internal investigation as cover. It was because of Holder’s persistent refusal to cooperate that Rep. Darrell Issa, R-Calif., threatened to hold him in contempt.
At the last minute, President Obama, who had claimed from the outset that he had no prior knowledge of the operation, asserted the privilege on Holder’s behalf, as only the president can invoke this important privilege.
The attorney general has a unique responsibility as a special steward to see that the laws are fairly and equally administered, and the Justice Department is the last federal agency that should be involved in a cover-up to obstruct the legal process. Both Holder and Obama are betraying that trust by the specious assertion of privilege in this case.
Fast and Furious was a reckless operation from the beginning, which must not be repeated. Congress has an interest in investigating all the facts both to prevent similar debacles in the future and to ensure that responsible officials are held accountable.
Obama and Holder have assured Congress and the American people that they will get to the bottom of the facts and that the culpable parties will be held accountable. But so far they have protected, and sometimes rewarded, their political appointees high up on the food chain and punished the whistleblowers who brought this into the open.
Fast and Furious was a harebrained scheme involving the sale of guns to straw purchasers with the hope that they would lead investigators to drug cartels. But because ATF agents were forbidden to track the movement of the weapons sold and Mexican authorities were kept in the dark about the operation, the only way it could have worked is for authorities to have discovered the weapons at crime scenes after crimes had been committed and people were injured or killed.
Holder has been caught twice deceiving Congress, and he claimed both instances were inadvertent. His excuse for misrepresenting when he’d learned about the operation by some 10 months was that he hadn’t read emails sent to him informing him of it.
Congress has a substantial need to know and a duty to pursue answers to: why Holder misled Congress; why the Department of Justice lied to Congress in a Feb. 4, 2011, letter in which they denied knowledge of gunwalking when internal documents proved they knew; why Fast and Furious was conceived in the first place; why ATF didn’t allow its agents to track the weapons once they were sold; why no one at Main Justice has been punished; who ultimately authorized the operation; why Mexican authorities were kept in the dark about an operation that resulted in the injury and death of hundreds of Mexican citizens; why DOJ officials approved wiretap applications if they didn’t read them thoroughly enough to discover that gunwalking was involved in the operation; and whether and when Obama had any knowledge of the operation.
What possible legitimate basis — national security or otherwise — does Obama have to deprive Congress of the requested information? This is an arrogant and lawless cover-up that appears calculated to buy this administration time until after the November election. Republicans should not back down. Though it acts like it, this defiant administration is not above the law.