House Oversight and Government Reform Chairman Darrell Issa (R-Calif.) challenged President Barack Obama’s assertion of executive privilege in a Monday letter to the president, echoing Speaker John Boehner’s (R-Ohio) comments that the assertion suggests White House involvement in the “Fast and Furious” gun-smuggling operation.
Executive privilege is limited to “documents and communications that implicate the confidentiality of the President’s decision-making process, defined as those documents and communications to and from the President and his most senior advisers. Even then, it is a qualified privilege that is overcome by a showing of the committee’s need for the documents,” Issa wrote.
“To date, the White House has steadfastly maintained that it has not had any role in advising the [Justice] Department with respect to the Congressional investigation. The surprising assertion of executive privilege raised the question of whether that is still the case,” Issa said.
The letter represents a shift from Issa’s comments Sunday on Fox News. In that appearance, he conceded that there is no evidence that the Obama administration has been involved in a cover-up of the controversial program. But he said he believes Boehner will bring contempt proceedings against Holder for withholding certain documents.
Democrats have also changed their tune from their challenges to the George W. Bush administration’s broad use of executive power. Democrats now say the legal doctrine protects internal deliberations from disclosure across the entire executive branch.
Obama spokesman Eric Schultz called Issa’s arguments “absurd.”
“Our position is consistent with Executive Branch legal precedent for the past three decades spanning Administrations of both parties, and dating back to President [Ronald] Reagan’s Department of Justice. The Courts have routinely considered deliberative process privilege claims and affirmed the right of the executive branch to invoke the privilege even when White House documents are not involved,” Schultz said.
Issa cited two recent decisions by the influential U.S. Court of Appeals for the D.C. Circuit that sided with disclosure over an assertion of executive privilege.
The first case, the 1997 In Re: Sealed Case (Espy) decision, dealt with a federal investigation into alleged misconduct by former Agriculture Secretary Michael Espy. President Bill Clinton asserted executive privilege over documents subpoenaed by a grand jury.
The decision, which quotes James Madison on the importance of the government remaining transparent, outlines two types executive privilege: the presidential communications privilege and the deliberative process privilege.
The court described the presidential communications privilege as limited to a set of core presidential advisers with proximity to the Oval Office, and refers to the broader deliberative process privilege as limited.
Even in the presidential communications privilege, “the privilege disappears altogether when there is any reason to believe government misconduct occurred,” the court said.
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.
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.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.