Obama Invokes Executive Power to Block Fast and Furious Documents

Borderland Beat

Updated 4:25 p.m. - A House committee voted Wednesday along party lines to cite Attorney General Eric Holder for contempt, capping a mounting and contentious fight between congressional Republicans and the Obama administration over a gun-running controversy in Mexico.

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Rep. Darrell Issa pressed ahead with a committee vote Wednesday to hold Attorney General Eric Holder in contempt of Congress, despite an eleventh-hour move by President Obama to assert executive privilege over the Fast and Furious documents at the heart of the dispute.

The announcement touched off a caustic debate on the House Oversight and Government Reform Committee that lasted well into the afternoon, as Democrats accused Issa of prosecuting a "political witch hunt" and Republicans stepped up their criticism of Holder's "stonewalling" over the Fast and Furious probe. Even for Washington, the tone at the hearing was decidedly bitter and accusatory.

The House Oversight and Government Reform Committee was first informed of the president's decision to assert executive privilege in a letter Wednesday morning, shortly before the contempt vote was scheduled.

Issa said committee staff are evaluating the letter but described the move as too little, too late as he and other GOP lawmakers questioned the basis for the assertion.

"This untimely assertion by the Justice Department falls short of any reason to delay today's proceedings," Issa said.

The chairman said, "We and the American people need answers sooner, not later."

Lawmakers on the panel reconvened Wednesday afternoon following a brief recess, with a vote on the contempt resolution presumably still on the table for later in the day. Lawmakers first took up, and voted down, several Democratic amendments to the contempt resolution. They did, however, approve a GOP amendment designating Obama's executive privilege claim as inappropriate.

The debate over the amendments capped an intense debate in which virtually every lawmaker on the committee weighed in.

'We and the American people need answers sooner, not later.'

- Rep. Darrell Issa, R-Calif.

Democrats roundly voiced disappointment with the proceedings, describing them as politically motivated and avoidable. They pleaded with Issa to seriously consider Obama's executive privilege claim -- the first Obama has asserted -- and some said Holder was being punished for withholding internal documents he shouldn't be turning over anyway.

Republicans praised Issa for pressing ahead, describing the vote as entirely unavoidable considering the department's alleged refusal to cooperate. They frequently invoked the name of Brian Terry -- Fast and Furious-linked guns were found at the murder scene of the Border Patrol agent. And Issa indicated he was waiting for a more detailed explanation from the White House, and a letter from Obama himself, before even considering changing course based on the executive privilege claim.

Issa also accused the Justice Department of trying to compel the committee to close its investigation in exchange for documents it hasn't yet seen. "I can't accept that deal. No other committee chairman would," he said.

But Issa's Democratic counterpart, Rep. Elijah Cummings, D-Md., fired back that Holder never made such a demand -- a Justice official also refuted Issa's claim -- and said the attorney general had come to the committee in "good faith" to try and work out an agreement.

Cummings said the upcoming contempt vote has "diminished" the prestige of the panel. "For the past year, you've been holding the attorney general to an impossible standard," he said, addressing Issa. "Mr. Chairman, it did not have to be this way. It really didn't."

Rep. Carolyn Maloney, D-N.Y., added that she was "horrified" by the panel's looming vote, calling it a "political witch hunt" and accusing Republicans of "overruling" the president.

If the vote proceeds, Republicans have more than enough votes on committee to pass the contempt resolution. However, Holder would not be considered held in contempt of Congress unless and until the full House approves the measure.

The move by Holder and Obama to lock down some requested documents only complicates the fight over the botched anti-gunrunning operation between the legislative and executive branches.

After Holder made the request to Obama via letter on Tuesday, Deputy Attorney General James Cole wrote to Issa, R-Calif., on Wednesday informing him that the president has granted the request.

"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 regarding Operation Fast and Furious," Cole wrote. "Although we are deeply disappointed that the committee appears intent on proceeding with a contempt vote, the department remains willing to work with the committee to reach a mutually satisfactory resolution of the outstanding issues."

Obama's decision pertains to documents from February 2011 and afterward examining how Justice officials learned about the Fast and Furious probe.

Holder, in his letter to Obama requesting he assert executive privilege, said those documents pertain to the "deliberative process" on how to respond to congressional and media inquiries.

White House Communications Director Dan Pfeiffer slammed committee Republicans later Wednesday, saying in a statement that: "Instead of creating jobs or strengthening the middle class, congressional Republicans are spending their time on a politically motivated, taxpayer-funded election-year fishing expedition."

Wednesday's developments follow a flurry of activity Tuesday, as Holder tried to negotiate a way to avert the contempt proceedings. Issa had earlier indicated a willingness to postpone the vote after Holder indicated a willingness to make compromises and supply some documents in response to House Republicans' subpoena.

But Issa told reporters after a roughly 20-minute meeting with Holder Tuesday that the attorney general instead briefed them on the documents in lieu of delivering them.

Issa told Fox News that Holder didn't provide "anything in writing."

Issa further said during the committee meeting Wednesday that the purpose of the probe "has never been to hold the attorney general in contempt." He said the committee had an aide on Capitol Hill all night in the hope that the Justice Department might send over documents to the panel.

The failed Fast and Furious operation attempted selling thousands of guns to arms dealers along the U.S.-Mexico border to trace them to leaders of drug cartels. However, many of them showed up in crime scenes.

Congressional investigators have been trying to determine if and when high-level Justice officials knew about problems with the operation.

After a day in which their son's name was repeatedly invoked, Terry's parents Josephine and Kent Terry also released a statement Wednesday afternoon expressing disappointment with the administration's latest actions.

"Attorney General Eric Holder's refusal to fully disclose the documents associated with Operation Fast and Furious and President Obama's assertion of executive privilege serves to compound this tragedy. It denies the Terry family and the American people the truth," they said.

The Department of Justice has adamantly defended its response. Holder said Issa rejected what he thought was "an extraordinary offer." Holder called for the Capitol Hill meeting late Monday in a possible attempt to make a deal with Issa and avoid the contempt vote.

"We offered the documents that we thought would resolve the subpoenas," he said. "The ball is in their court."

The contempt vote in the oversight committee will likely pass considering Republicans outnumber Democrats 22 to 16.

GOP House leadership has given Issa the green light to proceed how he sees fit, sources told Fox News, which suggests the vote would reach the House floor.

Issa had demanded to see a trove of documents on the controversial Bureau of Alcohol, Tobacco, Firearms and Explosives operation. He also wants to know who prepared a now-retracted letter from Feb. 4, 2011, in which the department claimed the U.S. did not knowingly help smuggle guns to Mexico, including those found where Terry was killed.

Issa wrote back to Holder later Monday requesting he deliver roughly 1,300 documents pertaining to the Feb. 4 letter. The letter also stated Holder needed to deliver a description of all the documents he will not produce.

full text of letter deputy Cole

Dear Mr. Chairman:

After you rejected the Department's recent offers of additional accommodations, you stated that the Committee intends to proceed with its scheduled meeting to consider a resolution citing the Attorney General for contempt for failing to comply with the Committee's subpoena of October 11, 2011. I write now to inform you that the President has asserted executive privilege over the relevant post-February 4, 2011, documents.

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 regarding Operation Fast and Furious. Although we are deeply disappointed that the Committee appears intent on proceeding with a contempt vote, the Department remains willing to work with the Committee to reach a mutually satisfactory resolution of the outstanding issues.

Over the last fourteen months, the Department has provided a significant amount of information to the Committee in an extraordinary effort to accommodate the Committee's legitimate oversight interests. The Department has provided the Committee with over 7,600 pages of documents and has made numerous high-level officials available for public congressional testimony, transcribed interviews, and briefings. Attorney General Holder has answered congressional questions about Fast and Furious during nine public hearings, including two before the Committee. The Department has devoted substantial resources to responding to these congressional inquiries.

In addition, upon learning of questions about the tactics used in Fast and Furious, the Attorney General promptly asked the Department's Acting Inspector General to open an investigation into the operation. This investigation continues today. We expect that the Inspector General's report will further help the Department to understand how these mistakes occurred and to ensure that they do not occur again.

Finally, the Department has instituted a number of significant reforms to ensure that the mistakes made in Fast and Furious are not repeated. For example, a directive was issued to the field prohibiting the flawed tactics used in that operation from being used in future law enforcement operations. Leadership and staffing at ATF and the Arizona U.S. Attorney's Office were reorganized, and ATF instituted new policies to ensure closer supervision by ATF management of significant gun trafficking cases. The Criminal Division refined its process for reviewing wiretap authorization requests by its Office of Enforcement Operations. And component heads were directed to take additional care to provide accurate information in response to congressional requests, including by soliciting information directly from employees with detailed personal knowledge of the subject matter at issue.

The Committee's original report accompanying its contempt resolution identified three "main categories" of interest: (1) "Who at Justice Department Headquarters Should Have Known of the Reckless Tactics"; (2) "How the Department Concluded that Fast and Furious was 'Fundamentally Flawed"'; and (3) "How the Inter-Agency Task Force Failed." Committee on Oversight and Government Reform, U.S. House of Representatives, Report at 39-40 (June 15, 20 12). With respect to the first category, the thousands of pages of documents and other information we have provided establish that the inappropriate tactics used in Fast and Furious were initiated and carried out by personnel in the field over several years and were not initiated or authorized by Department leadership. We have also provided the Committee with significant information with respect to the third category. In a revised report issued late last week, the Committee has made clear that these categories will not be the subject of the contempt vote. See Report at 41.

Rather, the Committee has said that the contempt vote will address only the second category, "How the Department Concluded that Fast and Furious was 'Fundamentally Flawed." See Report at 42; Letter for Eric H. Holder, Jr., Attorney General, from Darrell E. Issa, Chairman at 1-2 (June 13, 2012) ("Chairman's Letter"). In this regard, your letter of June 13 stated that the Committee is now "focused on" "documents from after February 4, 2011, related to the Department's response to Congress and whistleblower allegations" concerning Operation Fast and Furious, in order to "examine the Department's mismanagement of its response to Operation Fast and Furious." !d. The Committee has explained that it needs these post-February 4 documents, including "those relating to actions the Department took to silence or retaliate against Fast and Furious whistleblowers," so that it can determine "what the Department knew about Fast and Furious, including when and how it discovered its February 4 letter was false, and the
Department's efforts to conceal that information from Congress and the public." Report at 33.

The Department has gone to great lengths to accommodate the Committee's legitimate interest in the Department's management of its response to congressional inquiries into Fast and Furious. The information provided to the Committee shows clearly that the Department leadership did not intend to mislead Congress in the February 4 letter or in any other statements concerning Fast and Furious. The Department has already shared with the Committee all internal documents concerning the drafting of the February 4 letter, and numerous Department officials and employees, including the Attorney General, have provided testimony, transcribed interviews, briefings, and other statements concerning the drafting and subsequent withdrawal of that letter.

This substantial record shows that Department officials involved in drafting the February 4 letter turned to senior officials of components with supervisory responsibility for Operation Fast and Furious - the leadership of ATF and the U.S. Attorney's Office in Arizona - and were told in clear and definitive terms that the allegations in Ranking Member Grassley's letters were false. After the February 4 letter was sent, such assurances continued but were at odds with information being provided by Congress and the media, and the Attorney General therefore referred the matter to the Acting Inspector General for review.

As the Department's review proceeded over the next several months, Department leaders publicly indicated that the facts surrounding Fast and Furious were uncertain and that the Department had significant doubts about the assertions in the February 4 letter. For example, at a House Judiciary Committee hearing on May 3, 2011, the Attorney General testified that the Department's Acting Inspector General was reviewing "whether or not Fast and Furious was conducted in a way that's consistent with" Department policy, stating "that's one of the questions that we'll have to see." The next day, May 4, 2011, in response to a question from Senator Grassley at a Senate Judiciary Committee hearing about allegations that ATF had not interdicted weapons, the Attorney General said, " I frankly don' t know. That's what the [Inspector General's] investigation . . . will tell us." As you have acknowledged, Department staff reiterated these doubts during a briefing for Committee staff on May 5, 2011. Testifying before the Committee in June 2011, Ronald Weich, Assistant Attorney General for Legislative Affairs, acknowledged that "obviously allegations from the ATF agents . . . have given rise to serious questions about how ATF conducted this operation." He added that "we're not clinging to the statements" in the February 4 letter.

In October 2011, the Attorney General told the Committee that Fast and Furious was "fundamentally flawed." This statement reflected the conclusion that Department leaders had reached based on the significant effort over the prior months to understand the facts of Fast and Furious and the other Arizona-based law enforcement operations. The Attorney General reiterated this conclusion while testifying before Congress in November 2011. The Department's many public statements culminated in the formal withdrawal of the February 4 letter on December 2, 2011.

The Department has substantially complied with the outstanding subpoena. The documents responsive to the remaining subpoena items pertain to sensitive law enforcement activities, including ongoing criminal investigations and prosecutions, or were generated by Department officials in the course of responding to congressional investigations or media inquiries about this matter that are generally not appropriate for disclosure.

In addition to these productions, we made extraordinary accommodations with respect to the drafting and subsequent withdrawal of the February 4 letter, producing to the Committee 1,364 pages of deliberative documents. And we accepted your June 13 letter's invitation to "mak[ e] a serious offer" of further accommodation in hopes of reaching " an agreement that renders the process of contempt unnecessary." Chairman's Letter at 2. Specifically, we offered to provide the Committee with a briefing, based on documents that the Committee could retain, explaining further how the Department's understanding of the facts of Fast and Furious evolved during the post-February 4 period, as well as the process that led to the withdrawal of the February 4 letter. See Letter for Darrell E. Issa, Chairman, from Eric H. Holder, Jr., Attorney General at 1 (June 14, 2012). We also offered to provide you with an understanding of the documents that we could not produce and to address any remaining questions that you had after you received the briefing and the documents on which it was based. We believe that this additional accommodation would have fully satisfied the Committee's requests for information. We are therefore disappointed that the Committee has not accepted our offer and has chosen instead to proceed with the scheduled contempt vote.

As I noted at the outset, the President, in light of the Committee's decision to hold the contempt vote, has asserted executive privilege over the relevant post-February 4 documents. The legal basis for the President's assertion of executive privilege is set forth in the enclosed letter to the President from the Attorney General. In brief, the compelled production to Congress of these internal Executive Branch documents generated in the course of the deliberative process concerning the Department's response to congressional oversight and related media inquiries would have significant, damaging consequences. As I explained at our meeting yesterday, it would inhibit the candor of such Executive Branch deliberations in the future and significantly impair the Executive Branch's ability to respond independently and effectively to congressional oversight. Such compelled disclosure would be inconsistent with the separation of powers established in the Constitution and would potentially create an imbalance in the relationship between these two.co-equal branches of the Government.

In closing, while we are deeply disappointed that the Committee intends to move forward with consideration of a contempt citation, I stress that the Department remains willing to work toward a mutually satisfactory resolution of this matter. Please do not hesitate to contact this office if we can be assistance.

Sincerely,

James M. Cole
Deputy Attorney General

Sources: Business Insider and Fox Business