The White House ignited a full-fledged constitutional showdown Wednesday when President Obama asserted executive privilege in refusing to turn over documents subpoenaed by a House committee in its investigation of the botched Fast and Furious gunrunning investigation. The committee replied by voting to recommend Attorney General Eric H. Holder Jr. be held in contempt of Congress.
It's a stunning escalation in a 15-month-long fight, and marks the first time Mr. Obama has asserted the privilege during his term of office. But the move could be politically poisonous because courts have held that a president may claim privilege only if he or a top White House aide was part of the deliberations over Fast and Furious — meaning Mr. Obama is either defying precedent or tacitly acknowledging that someone in the White House was involved.
House Republican leaders said Wednesday afternoon that they will hold a contempt vote in the full House next week unless Mr. Holder produces the requested documents.
"Despite being given multiple opportunities to provide the documents necessary for Congress' investigation into Fast and Furious, Attorney General Holder continues to stonewall," House Speaker John A. Boehner of Ohio and Majority Leader Eric Cantor of Virginia said in a joint statement. "Fast and Furious was a reckless operation that led to the death of an American border agent, and the American people deserve to know the facts to ensure that nothing like this ever happens again."
The House Oversight and Government Reform Committee approved the contempt recommendation along strict party lines after more than six hours of rancorous debate. Twenty-three Republicans, led by Committee Chairman Darrell E. Issa of California, voted to send the recommendation to the House, while 17 Democrats were opposed.
The White House defended its assertion of executive privilege, saying Mr. Obama has used the tactic only once, far less often than his predecessors, and that Republicans were spending their time on "a politically motivated, taxpayer-funded election-year fishing expedition."
"In fact, the Justice Department has spent the past 14 months accommodating congressional investigators, producing 7,600 pages of documents and testifying at 11 congressional hearings," said White House communications Director Dan Pfeiffer.
Mr. Holder called the committee vote an election-year tactic intended to distract attention. He said the Justice Department made "unprecedented accommodations" in responding to committee requests for information, spending "countless hours compiling and providing thousands of documents" to Mr. Issa and the committee.
Border slaying sparks probe
The inquiry into Fast and Furious began with allegations by Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) agents who said — as whistleblowers — that the government allowed the transfer of illegally purchased weapons that were found at the scene of the killing of U.S. Border Patrol Agent Brian A. Terry. The agent died during a Dec. 15, 2010, shootout with Mexican bandits just north of the border, south of Tucson, Ariz.
The goal of Fast and Furious was to feed weapons to gun traffickers and follow them to drug cartel bosses in Mexico. But the ATF lost track of the weapons, and more than 2,000 guns — 600 of which remain unaccounted for — found their way to Mexican drug smugglers.
On Wednesday, the Terry family attorney, Pat McGroder, released a statement from the agent's parents, Josephine Terry and Kent Terry Sr., saying Mr. Holder's refusal to fully disclose Fast and Furious documents and Mr. Obama's assertion of executive privilege "serves to compound this tragedy."
"Our son lost his life protecting this nation, and it is very disappointing that we are now faced with an administration that seems more concerned with protecting themselves rather than revealing the truth behind Operation Fast and Furious," it said.
Mr. Pfeiffer said the operation was developed by ATF field offices and dated back to the "the previous administration."
But Sen. Chuck Grassley of Iowa, ranking Republican on the Senate Judiciary Committee who first began the Fast and Furious investigation, said the Justice Department on Wednesday retracted a statement by Mr. Holder last week to the Senate Judiciary Committee that his predecessor under President George W. Bush, Attorney General Michael Mukasey, was briefed about gunwalking during Operation Wide Receiver.
"In his eagerness to blame the previous administration, Attorney General Holder got his facts wrong. And his tactic didn't bring us any closer to understanding how a bad policy evolved and continued," he said. "Bad policy is bad policy, regardless of how many administrations carried it out."
Mr. Grassley also said the White House's use of executive privilege raised "monumental questions."
"How can the president assert executive privilege if there was no White House involvement? How can the president exert executive privilege over documents he's supposedly never seen? Is something very big being hidden to go to this extreme? The contempt citation is an important procedural mechanism in our system of checks and balances," he said.
"The questions from Congress go to determining what happened in a disastrous government program for accountability and so that it's never repeated again," he said.
Executive privilege appeal
The president asserted executive privilege Wednesday morning, just minutes before the committee began its meeting to consider the contempt citation.
Mr. Holder appealed directly to Mr. Obama for the privilege assertion, saying in an eight-page letter that the compelled producing of documents would "have significant, damaging consequences" and inhibit the department's deliberative process.
In a separate letter to Mr. Issa, Deputy Attorney General James M. Cole said the privilege applied to documents explaining how the department learned there were problems with the Fast and Furious operation.
"We regret that we have arrived at this point, after the many steps we have taken to address the committee's concerns and to accommodate the committee's legitimate oversight interests," Mr. Cole said.
Mr. Issa called the president's privilege assertion "untimely," asking why Mr. Obama was asserting executive privilege more than eight months after the documents originally were subpoenaed.
Mr. Boehner, who earlier had been involved with trying to work out an agreement to settle the records dispute with the Justice Department, also questioned the executive privilege claim.
His press secretary, Brendan Buck, said that until now "everyone believed that the decisions regarding Fast and Furious were confined to the Department of Justice. The White House decision to invoke executive privilege implies that White House officials were either involved in the Fast and Furious operation or the cover-up that followed.
"The administration has always insisted that wasn't the case. Were they lying, or are they now bending the law to hide the truth?" he asked.
The contempt vote became likely after Mr. Holder and Mr. Issa failed to reach an agreement concerning the documents during a 20-minute meeting Tuesday on Capitol Hill.
Mr. Holder later told reporters that he would not turn over Fast and Furious documents unless Mr. Issa agreed to another meeting, where he said he would explain what is in the materials. He said he wanted an assurance that the transfer of the records would satisfy the committee's subpoena.
Democratic members of the committee defended Mr. Holder. The panel's ranking Democrat, Rep. Elijah E. Cummings of Maryland, said there was no need for the contempt vote Wednesday and the committee could have worked with the Justice Department in obtaining the requested records.
Mr. Cummings said assertions of executive privilege should be used "sparingly," but added that in this case, "it seems clear that the administration was forced into this position by the committee's unreasonable insistence on pressing forward with contempt despite the attorney general's good-faith offer."
Mr. Cummings noted that the full House has never held an attorney general in contempt, and the only precedent for what the committee did Wednesday was 1998, when Attorney General Janet Reno was recommended for a contempt citation, but Speaker Newt Gingrich refused to bring it the floor for a vote.
"If Speaker Boehner brings this contempt citation to the floor, he will be known as one of the most extreme speakers in history," he said.
Rep. Carolyn B. Maloney, New York Democrat, said the committee's probe "shouldn't be a political witch hunt" while Rep. Danny K. Davis, Illinois Democrat, said Mr. Holder was being "held to an impossible standard."
If the full House passes the contempt resolution against the attorney general, the speaker could forward it to the U.S. attorney for District of Columbia, who could call for a criminal investigation — although it has not happened before.
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