The House of Representatives has filed a civil lawsuit against Attorney General Eric Holder, seeking to enforce its subpoena for documents related to the Department of Justice’s ill-conceived Fast and Furious gun-running operation. Some members of Congress will claim that this action is a personal, or even racist, attack on the attorney general, while many in the media will dismiss the lawsuit as a ploy to score political points. But such responses will trivialize a critical investigation into Fast and Furious, which armed criminals and left one of our Border Patrol agents dead.
At issue in this lawsuit are documents that could explain what the Justice Department leadership learned about Fast and Furious between February and December of 2011 that caused the department to completely reverse its original denial of whistleblower complaints about the program. In a February 4, 2011, letter to Senator Charles Grassley, the department denied that ATF “sanctioned” the sale of assault weapons to straw purchasers who then transported them to Mexico, and claimed that the department always attempts to interdict guns that have been purchased illegally. Just eight months later, the attorney general and other senior DOJ officials testified that the whole Fast and Furious operation was “fundamentally flawed and . . . its tactics must never be repeated,” and in December 2011, the department took the extraordinary step of formally withdrawing its February 4 letter entirely.
The Oversight Committee subpoenaed documents that could shed light on how the department ultimately concluded that Fast and Furious was “fundamentally flawed.” Although the committee narrowed its demand to responsive documents that post-date the department’s February 4, 2011, letter, the department has refused to produce any documents from this time period, and just as the committee was about to vote to hold the attorney general in contempt for refusing to comply with its subpoena, President Obama asserted executive privilege over the relevant documents.
The committee’s lawsuit is not, as the attorney general declared after the contempt vote, crass “political theater.” Nor is it, as the attorney general’s supporters have suggested, a brazen attempt to run him out of office. He just happens to be the guy who holds the documents — the official “custodian,” and thus the proper defendant in this suit.
The Justice Department gave the Oversight Committee false information about a significant law-enforcement debacle and, despite publicly acknowledging the legitimacy of the committee’s investigation, has refused to provide the committee with the information it needs to figure out how that occurred. Moreover, the attorney general himself testified to the committee in May 2011 that he first learned about the program “over the last few weeks,” and that testimony was later contradicted by memos to him discussing Fast and Furious as early as July 2010. Given this track record of misinformation, can anyone seriously doubt the ingenuousness of the committee’s actions?
The dispute now moves to federal court, where the Oversight Committee has challenged the assertion of executive privilege and seeks to enforce its subpoena. The court will have to determine what documents, if any, are covered by the privilege, and whether the committee has a sufficient need for the information to override the privilege and order those documents to be produced.
Executive privilege is a well-established presidential prerogative, rooted in separation-of-powers principles. It allows the president to get candid advice from his closest advisers, and it allows executive agencies to elicit and consider a full range of alternatives in the development of their policies. The privilege, and the interests it represents and protects, should be given due weight by the court and the public. Among the documents covered by the president’s blanket assertion of executive privilege, there may well be some documents to which the privilege rightfully applies. For those, the court will have to weigh the respective interests of the executive and the legislative branches and decide whose interests should prevail. On the present record, the committee will likely succeed in getting its documents . . . eventually.