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.
In this case, there are threshold questions as to whether executive privilege has been properly invoked as a procedural matter, because there has been no document released with the president’s signature invoking executive privilege, no explanation of the legal basis for the assertion of the privilege, and no description of the documents claimed to be protected. The administration simply has made a blanket assertion of the privilege over all relevant documents without any explanation. Courts have rejected “trust us” as a legal justification for executive privilege.
There are two types of executive privilege — presidential communications and deliberative process. Presidential communications are afforded greater protection, but this privilege has been narrowly construed: It encompasses only the president’s closest advisers within the White House, and only matters of direct presidential decisionmaking or involvement. Conversely, the deliberative-process privilege extends throughout the executive branch to shield its policy deliberations, but has been given far less deference by the courts. The deliberative-process privilege, moreover, cannot be invoked to shield factual information. Thus, the facts that led the department to conclude that Fast and Furious was “fundamentally flawed” cannot be shielded by a broad assertion of deliberative-process privilege.
The department has characterized the withheld documents obliquely as “internal Executive Branch documents generated in the course of the deliberative process concerning the Department’s response to congressional oversight and related media inquiries.” While this suggests that executive privilege has been asserted on the basis of deliberative process, this characterization may encompass presidential communications as well (with no description of the documents, it is impossible to tell). Indeed, it is hard to believe that the department would discover that it had provided wholly inaccurate information to Congress without the White House, and perhaps even the president himself, being consulted about how to fix it. Moreover, White House press secretary Jay Carney declined to answer a direct question about whether the documents being withheld from the committee include communications to or from the White House. This would not necessarily mean that the president was involved in or even had knowledge of the operation while it was ongoing (he has denied having such knowledge), but it could be significant to a court’s analysis of whether executive privilege should be accepted or rejected with respect to particular documents, and to the public’s consideration of whether the president has been involved in covering up some of the facts surrounding Fast and Furious.
Assuming the parties or the court determines to which of the withheld documents executive privilege applies, the next question will be whether there is a basis to disallow the privilege and order their production to the Oversight Committee. Executive privilege is a qualified privilege that can be overcome by a demonstration of need for the protected information. Significantly, the threshold to overcome a claim of privilege based on deliberative process is much lower than for presidential communications.
Here, the Oversight Committee’s need is manifest. It is difficult to identify other sources besides these documents that would allow the committee to understand the department’s 180-degree reversal on the facts about Fast and Furious, and to ascertain whether there are deficient processes at the department — in communications, in decisionmaking, or elsewhere — that need to be addressed legislatively. Moreover, the Justice Department has swung and missed once already in trying to explain what happened in this operation. Given that these documents could shed light on how and why the department gave the committee false information in the course of a legitimate oversight inquiry, the court might see a strong need for a full airing of the circumstances leading the department to correct the record.
Finally, it is well established that executive privilege cannot be used to shield evidence of wrongdoing. Except where there are direct foreign-policy or national-security interests at stake, courts have rejected the privilege where there is reason to believe that the relevant documents may shed light on government misconduct. While it is unclear that the flawed policy decisions behind the Fast and Furious operation rise to the level of “government misconduct” in this context — Lord knows, if every bad government policy decision would destroy the privilege, the exception quickly would swallow the rule — the provision of false information to Congress in the course of an official oversight investigation surely creates an inference that misconduct occurred, at a minimum, somewhere within the department’s chain of command.
As the showdown moves to the court system, there is political risk and legal uncertainty for both sides. The House faces a skeptical public, fueled by a chorus of lawmakers and commentators making rather outrageous allegations about the motives behind the proceedings. Meanwhile, the administration risks a public backlash over the perception that it is covering up embarrassing information about a tragically misguided law-enforcement operation. Those are considerations for each side to weigh as they decide whether to press their case or reach a political compromise. On the legal front, the gravity of the investigation into Fast and Furious and the Oversight Committee’s obvious need to understand what caused the Justice Department to recognize that its initial explanation of the operation was profoundly wrong, tip the balance of equities decidedly in the committee’s favor.
— Scott Coffina is a former associate counsel to President George W. Bush and former assistant U.S. attorney. He currently is a partner with Drinker Biddle and Reath, practicing in Philadelphia and Washington, D.C.