After nearly two years of congressional inquiries that have resulted in an executive privilege claim by President Barack Obama and the first congressional contempt citation of the U.S. attorney general in the nation’s history, there is the potential for a compromise resolution.
The dispute resulted from the Obama administration’s gun-walking program, Operation Fast and Furious, which had been intended to catch Mexican drug cartel members. Agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives failed to properly track several thousand firearms that had been purchased by cartel members, and at least two of the weapons were found at the location where U.S. Border Patrol agent Brian Terry was murdered.
After the House held U.S. Attorney General Eric H. Holder Jr. in contempt for failing to disclose documents in the investigation last year, the Obama administration refused to enforce the citation. The House followed with a lawsuit asking the D.C. District Court to compel Holder to produce the documents.
These events have similar markings to the controversy that occurred toward the end of George W. Bush’s presidency when his administration refused to enforce a contempt resolution issued by the House –– then controlled by the Democrats –– in the U.S. attorneys firing case. A compromise deal occurred only after Bush’s term expired.
The Obama administration argues that D.C. District Judge Amy Berman Jackson should dismiss the case on the basis that federal courts do not have jurisdiction over such executive branch actions. This argument is breathtaking in its scope. If upheld by the D.C. District Court, it would give the president and executive branch near complete freedom from congressional and judicial oversight. The court previously rejected a similar argument made by the Bush administration in 2008. It should do so here.
Recent talks between House Republicans and Obama administration officials to settle the dispute outside the courtroom are an appropriate step toward resolution. Jackson and the Justice Department have signaled some hope for a compromise. Yet a lawyer for the House expressed little “expectation about the outcome” of the talks.
The House attorney has reason to be skeptical. The Obama administration has not been forthcoming in this congressional investigation. The initial Justice Department response to the first inquiries by members of Congress was to deny that its gun-walking program had failed. After 10 months, the department withdrew its initial response and admitted that it had contained “inaccuracies.”
As the House investigated the matter, the department decided to withhold relevant information. In one incident, staff for the House Oversight Committee had to go to the department to look at Fast and Furious documents. Only after arriving did staff members discover that most of the documents were partially — and, in some cases, almost completely — redacted. Congress needs to see the full record to fulfill its investigative function.
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.”
Senate Minority Leader Mitch McConnell, R-Ky., carries a musket on stage as he speaks during the American Conservative Union's Conservative Political Action Conference (CPAC) at National Harbor, Md., on Thursday March 6, 2014.