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Darrell Issa Challenges Barack Obama’s Executive Privilege Assertion

Tom Williams/CQ Roll Call

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.

In the most recent conflict between Congress and the president over a Congressional subpoena, Democrats and Republicans were reversed.

The Democratic-led House held two White House aides, Harriet Miers and Josh Bolten, in contempt of Congress for refusing to comply with subpoenas. Republicans, including Issa, defended the move, while Democrats said it was unlawful.

After the House held Miers and Bolten in contempt, the Judiciary Committee sued the two aides in federal district court.

In August 2008, a federal judge ordered Miers to testify and Bolten to turn over documents, overruling the administration’s claim of executive privilege. That ruling was appealed.

In March 2009, a year after the suit was filed, Miers and Karl Rove, who had also become ensnared in a separate contempt proceeding, agreed to testify behind closed doors to the House Judiciary Committee. The deal broke the stalemate.

Democrats have sought to differentiate the circumstances of the two cases.

Rep. Adam Schiff (D-Calif.) said in an interview Monday that he voted for contempt then because Miers refused to even appear before Congress, rather than decline to answer specific questions because of executive privilege.

Issa has made a similar argument in the Fast and Furious probe: The DOJ, he said, has not provided a log of which documents it is withholding, including specifying which documents it is shielding with executive privilege.

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