Withholding Documents: A Pattern and Practice

by Peter Kirsanow

Next week the House Oversight Committee will consider a contempt citation against Attorney General Holder for failing to produce documents subpoenaed by the committee in the Fast and Furious investigation. This isn’t the first time this Justice Department has failed to produce documents during the course of an investigation. Despite being compelled by federal statute to cooperate with investigations of the U.S. Commission on Civil Rights, during the commission’s investigation of DOJ’s dismissal of the voter intimidation complaint against members of the New Black Panther Party DOJ

  • refused to respond to 22 requests for production of documents
  • refused to answer 18 separate interrogatories
  • refused to provide witness statements for twelve key witnesses
  • failed to provide requested e-mails between Civil Rights Division personnel and other DOJ officials regarding dismissal of the suit
  • barred two key DOJ attorneys from testifying before the commission (both attorneys defied DOJ and testified at considerable risk to their careers)
  • failed to provide even draft pleadings in the NBPP case
  • invoked dubious privileges in order to withhold critical information yet failed to invoke executive privilege
  • refused to provide a privilege log

Any commission attempt to subpoena the requested information would have been frustrated by the fact that actions to enforce such subpoenas are handled by DOJ. Perhaps Congress will have better luck getting the F&F documents.

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