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Other examples of the administration’s refusal to cooperate abound. Probably the high-water mark was the final effort by Holder to avoid a contempt citation. In a brief meeting with House Oversight and Government Reform Chairman Darrell Issa, R-Calif., Holder offered a “fair compilation” of the subpoenaed documents that the administration had refused to disclose on the condition that the contempt vote be canceled and that Issa accept the validity of the documents before having a chance to review them. Issa rightly refused the deal.
Such past actions by the administration understandably make the House hesitant to believe a deal can be reached. However, in this case the House is negotiating from a position of strength. First, the constitutional and legal arguments are on the side of Congress, not the executive. The executive privilege claim by Obama is makeweight at best. Congress has compelling oversight and lawmaking interests in the Fast and Furious investigation. Second, there exists a favorable D.C. District Court ruling in the U.S. attorneys firings controversy that dealt with many of the same issues involved in this case. Aware of that ruling, the administration has a strong incentive to seek a nonjudicial settlement.
In most interbranch disputes, settling indeed is preferable to a judicial showdown. The system of checks and balances is predicated on the political branches engaging in an accommodation process to resolve controversies over their respective powers. Constitutional brinkmanship rarely serves the interests of either branch. However, any negotiated deal must require full cooperation with the congressional investigation by the Justice Department and Obama White House. Unless the administration can demonstrate valid reasons to not fully comply with the subpoena requests, then all documents related to Fast and Furious should be disclosed. A settlement that allows for the administration to continue stonewalling would establish a harmful precedent that further empowers presidents to block congressional investigations. Congress needs to exert, not forgo, legislative controls on executive powers.
Mitchel A. Sollenberger is associate professor of political science at the University of Michigan-Dearborn. Mark J. Rozell is professor of public policy at George Mason University. They are co-authors of “The President’s Czars: Undermining Congress and the Constitution.”