The other case Issa cited, the 2004 decision Judicial Watch v. Department of Justice, found Bush could not protect Clinton-era documents about pardons, including a controversial one issued to fugitive commodities trader Marc Rich, via executive privilege. Judicial Watch, a watchdog group, had sued to obtain the documents under the Freedom of Information Act.
In Fast and Furious, agents for the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed assault guns to “walk,” which meant ending surveillance on weapons suspected to be en route to Mexican drug cartels.
The tactic, which was intended to allow agents to track criminal networks by finding the guns at crime scenes, was condemned after two guns that were part of the operation were found at Border Patrol Agent Brian Terry’s murder scene.
In March, Issa and Sen. Chuck Grassley (R-Iowa) reiterated requests to interview one-time White House aide Kevin O’Reilly. In response, White House counsel Kathryn Ruemmler said emails between O’Reilly and a key ATF official deeply involved in Fast and Furious did not reveal “the existence of any of the inappropriate investigative tactics at issue in your inquiry, let alone any decision to allow guns to ‘walk,’” according to Issa’s letter.
“Your assertion of executive privilege renews concerns about these denials,” Issa wrote in his letter to Obama.
The letter also contains another explanation for why Issa refused a deal offered by Attorney General Eric Holder at an eleventh hour Capitol meeting to head off the impasse.
“During the June 19th meeting, the Attorney General stated he wanted to ‘buy peace.’ He indicated a willingness to produce the ‘fair compilation’ of post-February 4 documents. He told me that he would provide the ‘fair compilation’ of documents on three conditions: (1) that I permanently cancel the contempt vote; (2) that I agree the Department was in full compliance with the Committee’s subpoenas, and; (3) that I accept the ‘fair compilation,’ sight unseen.
“As Chairman of the primary investigative Committee of the U.S. House of Representatives, I considered the Attorney General’s conditions unacceptable, as would have my predecessors from both sides of the aisle. I simply requested that the Department produce the ‘fair compilation’ in advance of the contempt vote, with the understanding that I would postpone the vote to allow the Committee to review the documents,” Issa wrote.
Schultz cited several historical examples of presidents withholding documents, including an instance when the first president, George Washington, refused to turn over all documents related to an investigation into a botched expedition against Native Americans.
The most recent example Schultz cited was Reagan invoking executive privilege over internal Environmental Protection Agency documents.
In that instance, Rep. John Dingell (D-Mich.) led the charge in demanding the documents. After the full House held EPA Administrator Anne Gorsuch Burford in contempt of Congress, Reagan ultimately caved and the EPA provided all of the documents at issue without limitation, according to a Congressional Research Service report.
That report offers a broad view of Congress’ legal authority to demand internal documents, saying Congress has “consistently sought and obtained” internal DOJ documents and successfully demanded information “from the Attorney General down to subordinate personnel,” adding that court precedents have affirmed broad Congressional investigative authority in nearly every instance, regardless of whether the documents relate to ongoing criminal investigations.
Lois Lerner, director of exempt organizations for the IRS, arrives for a House Oversight and Government Reform Committee hearing on the investigation of the IRS' targeting of political groups. Lerner invoked her Fifth Amendment right to not testify and caused a protest from some committee members when she offered an opening statement and engaged in dialogue with members before invoking the right.
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