President Obama on Wednesday asserted executive privilege over documents sought by a House committee in its investigation of the botched “Fast and Furious” operation.
The last-minute move came just before the start of a scheduled hearing by the House Oversight and Government Reform Committee on a contempt of Congress citation against Attorney General Eric H. Holder Jr., who has refused since October to honor a committee subpoena seeking the documents.
In a letter to Rep. Darrell E. Issa, California Republican and the committee’s chairman, Deputy Attorney General James Cole said the privilege applies to documents that explain how the department learned there were problems with the Fast and Furious operation, which allowed more than 2,000 weapons to be “walked” to drug smugglers in Mexico.
“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 said the president’s “untimely assertion” of executive privilege “falls short of any reason to delay today’s proceedings,” concerning the contempt citation. He also questioned why the president now was asserting executive privilege more than eight months after the documents originally were subpoenaed.
House Speaker John A. Boehner, Ohio Republican, questioned the White House’s claim of executive privilege.
Mr. Boehner’s 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.
“This is a very sad day for the United States of America,” said Rep. John L. Mica, Florida Republican, concerning the president’s assertion of executive privilege. “There is no way this committee is not entitled to these documents.”
A contempt vote against Mr. Holder became likely after he and Mr. Issa failed to reach an agreement over turning over the documents during a 20-minute meeting Tuesday on Capitol Hill. Mr. Holder did not turn over any records at the meeting and later told reporters 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.
Mr. Holder said he wanted an assurance from Mr. Issa that the transfer of the records would satisfy the committee’s subpoena.
“I had hoped that after this evening’s meeting I would be able to tell you that the department had delivered documents that would justify the postponement of tomorrow’s vote on contempt,” Mr. Issa said. “The department told the committee on Thursday that it had documents it could produce that would answer our questions.”
Sen. Chuck Grassley of Iowa, ranking Republican on the Senate Judiciary Committee, who first began the Fast and Furious investigation, said the assertion by the White House of executive privilege raises “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.
Mr. Grassley’s inquiry into Fast and Furious began with allegations by Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) agents who said — as whistle-blowers — that the government had 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.
He said the Justice Department denied the allegations for 10 months before being forced to withdraw its denial in the face of evidence to the contrary.
The pending contempt citation must be passed by the committee and then the entire House of Representatives. It calls for the speaker of the House to turn over the committee’s report on Mr. Holder’s refusal to produce documents to the U.S. attorney for the District of Columbia for enforcement.
Contempt of Congress is a federal misdemeanor, punishable by a maximum $100,000 fine and a maximum one-year sentence in federal prison.
Meanwhile, Mr. Grassley said the Justice Department on Wednesday retracted a statement made by Mr. Holder last week to the Senate Judiciary Committee when he claimed that his predecessor, then-Attorney General Michael Mukasey, had been briefed about gunwalking during Operation Wide Receiver.
He said the department now says Mr. Holder “inadvertently” made the claim, although he noted that the Justice Department failed to apologize to Mr. Mukasey for the false accusation.
Mr. Grassley noted that this is the second major retraction the Justice Department has made in the past seven months. In December 2011, he said the department retracted its claim that the ATF had not allowed illegally purchased guns to be trafficked to Mexico.
“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.
“Ironically, the only document produced yesterday by the department appears to show that senior officials in the attorney general’s own department were strategizing about how to keep gunwalking in both Wide Receiver and Fast and Furious under wraps,” he said.