Could Operation Fast and Furious become a full-fledged Beltway scandal? Increasingly, it appears that President Barack Obama is leading a stonewalling effort that could make some of President George W. Bush’s confrontations with Congress seem tame.
Yet this tack is nothing new for this administration, which has backtracked on the president’s pledge of a new era of open government. In several controversies — most notably the Fort Hood shooting investigation — the administration has been less than forthcoming with information sought by legislators.
However, in its recent Friday document dump, the White House has come the closest yet to making an actual claim of executive privilege. In a letter to Oversight and Government Reform Chairman Darrell Issa (R-Calif.) and Senate Judiciary ranking member Chuck Grassley (R-Iowa), White House Counsel Kathryn Ruemmler noted that some documents are being withheld “because the [Executive Office of the President] has significant confidentiality interests in its internal communications.”
Such a broad sweeping claim of privilege lacks merit. There is no absolute threshold of protection for White House aides, documents or even the president that allows for a veil of secrecy for reasons of “significant confidentiality interests” in internal White House communications. Barring some substantial threat to the public interest from releasing information, the presumption is in favor of Congress receiving testimony and documents when one of its committees is carrying out oversight functions.
To be clear, the documents recently released show extensive communications between Bill Newell — the lead agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives in charge of Fast and Furious — and the White House. Ruemmler claims that “none of the communications between ATF and the White House revealed the investigative law enforcement tactics at issue in your inquiry, let alone any decision to allow guns to ‘walk.’” Although this assertion could be true, withholding documents from Congress leaves lawmakers, the press and the American public with an incomplete picture and a lot of suspicion.
Even if the president never utters “executive privilege,” the damage done to open government and Obama’s promise of transparency is equally harmful. In a constitutional republic, no one branch dominates, and White House officials cannot shield themselves from Congress without justification. Regardless of how the White House wants to frame this controversy, the rule of law and basic democratic controls of government win out over legal obfuscation and delay.
The White House needs to provide Issa’s committee with access to all the documents pertaining to the Fast and Furious program. In addition, the documents released show that former National Security Council staffer Kevin O’Reilly spoke to Newell. The White House must ensure that O’Reilly also testifies.
Congress has the responsibility to investigate this matter. Somehow, various parts of the executive branch sanctioned the arming of Mexican drug cartels, which resulted in the murder of a U.S. Border Patrol agent and others from guns supplied by the federal government. In the past few years, Congress has investigated scandals that did not touch on life-and-death matters, including the controversy over the Bush administration’s denial to the state of California the authorization to regulate the greenhouse gas emissions of vehicles and even the firing of several U.S. attorneys.
The president needs to take a step back and realize that no matter where the evidence leads, he must disclose all requested documents and provide the required testimony so the full story of what occurred can be known and the people ultimately responsible for implementing such a misguided program can be held accountable.
In 2008, candidate Obama made it clear that he understood that is how the American system is supposed to operate. He promised transparency and an end to Bush-era secrecy tactics. It’s time for him to begin to fulfill that pledge.
Mitchel A. Sollenberger is an assistant professor of political science at the University of Michigan-Dearborn. Mark J. Rozell is a professor of public policy at George Mason University. Their forthcoming book, “The President’s Czars,” will be published in spring 2012.