Fast and Furious, Executive Privilege, and a Suspected Cover-Up

As I explained previously, last month Congress began moving toward holding Attorney General Eric Holder in criminal contempt for his stonewalling concerning Congress’s valid inquiry into the Operation Fast and Furious scandal.

Fast and Furious was an Obama Administration plan to allow guns to get into the hands of members of Mexican drug cartels in the hope that the members could be arrested and prosecuted. The plan did not work. The smuggled guns wound up being used by criminals, especially in Mexico, and were connected with the December 2010 death of Brian Terry, a United States Border Patrol Agent, in Arizona.

The first step in the long process of holding Eric Holder in contempt has taken place. Today, the House Oversight and Government Reform Committee, chaired by Darrell Issa (R-CA), voted to approve a contempt citation against Holder, who has failed to comply fully with the Committee’s subpoena and, in particular, has refused to turn over all the documents the Committee seeks regarding Fast and Furious.

In an interesting turn of events this morning, before the Committee began its consideration, President Obama asserted an executive privilege as the basis for not turning over the documents to the Committee. This is the first time President Obama has asserted an executive privilege during his Administration.

Since the founding of our nation, the executive branch has claimed various privileges to prevent the disclosure of information that it wants to keep confidential. Courts have reviewed executive privilege claims and have concluded that some claims are valid, while other claims go too far and are not supported by the Constitution.

Here, the particular type of executive privilege that President Obama is asserting is called the deliberative process privilege. The deliberative process privilege is based on the separation of powers. It is designed to prevent disclosure of documents that would reveal advisory opinions, recommendations, and deliberations authored by, or provided to, senior executive branch officials that make up part of the process by which the executive branch formulated its decisions and policies. The catch, however, is that President Obama and Attorney General Holder have disclaimed any participation in the Fast and Furious decision-making process, which directly undermines the claim that the deliberative process privilege applies.

Unlike some privileges, the deliberative process privilege is not an absolute privilege. Rather, it is a qualified privilege that can be overcome on a case-by-case basis. When claims of executive privilege reach a federal trial judge, the judge determines whether the privilege was properly asserted and, if so, whether Congress has shown that its need for the documents outweighs the reasons for confidentiality.

The fact that the Fast and Furious scandal involves allegations of misconduct, and even possible criminal conduct, by government officials significantly weakens President Obama’s claim of executive privilege. As explained by the United States Court of Appeals for the District of Columbia Circuit in In re: Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 1997), “where there is reason to believe the documents sought may shed light on government misconduct, ‘the privilege is routinely denied,’ on the grounds that shielding internal government deliberations in this context does not serve ‘the public’s interest in honest, effective government.’”

Now that the House Committee has voted in favor of the contempt citation, the entire House of Representatives must consider the matter. The House will vote next week on whether to hold Holder in contempt.

The Administration’s assertion of an executive privilege is not a reason to prevent the House from holding Holder in contempt. The last minute assertion of the privilege is clearly designed to provide Holder with a defense should he later be prosecuted for criminal contempt or should Congress seek a court order requiring him to provide the requested documents (as it has done in previous situations).

If the House votes in favor of contempt, the matter goes to the United States Attorney for the District of Columbia who has a statutory duty to present the matter to a grand jury to consider the filing of criminal charges against Holder. (The United States Attorney, who was appointed by President Obama, can later decline to prosecute in the exercise of prosecutorial discretion.) If Holder is tried and convicted of criminal contempt, he faces a fine and up to one year in prison.

To avoid a contempt charge, Holder can simply comply with the subpoena and fully cooperate with the investigation. But, that does not appear to be the path that will be taken by the Obama Administration. The Administration’s lack of full cooperation in the investigation, including this last minute assertion of an executive privilege, is leading people to suspect that the Administration is trying to orchestrate a cover up.

We will know Holder’s fate, including whether he resigns, soon enough. Eventually, too, we will learn the truth about Fast and Furious and about whether there was a cover up. Until then, those in this country and in Mexico, especially the families of the people killed by the guns the Administration allowed to get into the hands of criminals, will have to wait for answers to their questions, including why Operation Fast and Furious was allowed to begin in the first place.