Background: Fast and Furious, executive privilege, and contempt of Congress explained

The War Room Staff
June 20, 2012
Comments

What is Fast and Furious?

Fast and Furious is trending on Twitter, and it’s not because Vin Diesel and Paul Walker are tearing it up on the summer blockbuster circuit. Instead, it’s the name of one of the operations conducted by the Bureau of Alcohol, Tobacco and Firearms’ (ATF) Project Gunrunner that’s at the center of a growing scandal. Project Gunrunner was an operation designed to stem the flow of firearms to Mexican drug cartels and ultimately to reduce violence in both Mexico and the United States by allowing “gunwalking,” a process in which the ATF allowed traceable firearms to walk into the hands of drug cartel members so that law enforcement could trace the guns used in crimes and bust the criminals who received the guns.

The ATF’s pilot gunwalking program kicked off in 2005 in Texas and no doubt worked on paper, but the death of U.S. border agent Brian Terry, killed in a firefight near the border in late 2010, sparked a controversy around Project Gunrunner that has been hard to dial back. After Terry’s death, ATF Special Agent John Dodson blew the whistle on Fast and Furious, which had lost track of many of the weapons it was designed to track, resulting in an increase of weapons in the hands of the Sinaloa cartel. According to a fact sheet issued by the ATF in 2008, the bureau planned to work in conjunction with the Mexican government and law enforcement to trace weapons using the eTrace system, which it expected would help “increase the strategic coverage and disrupt firearms-trafficking corridors operating along the border,” ultimately reducing the number of guns. Instead, these operations enabled straw purchases, purchases on behalf of others, that facilitated more weapons getting into Mexico. Those straw purchases were a deviation from the usual ATF policy of seizing guns fast and run contrary to ATF training and procedures, according to agents who spoke to The New York Times.

And although the original gunwalking started under the Bush Administration, it’s Obama and U.S. Attorney General Eric Holder who are under fire, especially from right-leaning press outlets, including Fox News, who are championing justice for Terry and demanding answers about his death from the Obama administration, since Fast and Furious flamed out on this administration’s watch. Congress, too, has jumped into the fray, with House Republicans accusing Holder of stonewalling their investigation into the operation that killed Terry and recommending Holder be held in contempt of Congress under the leadership of Rep. Darrel Issa (D-Calif.).

Executive privilege in context

“Until now, everyone believed that the decisions regarding Fast and Furious were confined to the Department of Justice. The White House decision to invoke executive privilege implies that White House officials were either involved in the Fast and Furious operation or the cover-up that followed,” said Michael Steel, spokesman for House Speaker John Boehner, in response to President Obama’s choice to cite executive privilege this morning, asserting what Obama says is his right to withhold communications regarding Fast and Furious. Does Steel’s allegation hold water?

President Thomas Jefferson was the first to establish the notion of executive privilege by citing it when he refused to testify and release a letter from a military adviser to Vice President Aaron Burr for a treason tribunal. But it wasn’t until the Watergate scandal that what executive privilege is and when it can be enforced was more carefully defined.

The two types of executive privilege are “presidential communications privilege” and the more restrictive “deliberative process privilege.” The former refers to the more robust of the two and was used by Obama this morning. In presidential communications privilege, the president can claim executive privilege in relation to exchanges that are “in performance of [a president’s] responsibilities” and “in the process of shaping policies and making decisions.”

In a letter to House Oversight Committee Chairman Darrell Issa on June 20, 2012, James M. Cole, the deputy attorney general, wrote “The president has asserted executive privilege over the relevant post–February 4, 2011, documents” — the first time in Obama’s presidency that he has cited executive privilege. Presidents Ronald Reagan, George H.W. Bush and George W. Bush all cited executive privilege in inquiries related to nonpresidential communications. The issue of privilege is important because exchanging confidential information as a way of engaging in a healthy decision-making process is vital to keeping the executive branch of government fully functioning. This privilege falls in line with the same privilege the president has in concealing documents that are classified for national security, according to “Executive Privilege 101” from the Center for American Progress. George W. Bush cited the privilege six times, and President Clinton, 14. And, according to a Think Progress report, “Presidents Ronald Reagan, George H.W. Bush and George W. Bush all asserted executive privilege in matters not involving presidential communications.” Additionally, the “Bush administration Attorney General Michael Mukasey invoked the same ‘deliberative process privilege’ as recently as 2008, rejecting congressional subpoenas for reports of Department of Justice interviews with the White House staff regarding the Valerie Plame Wilson identity leak investigation.”
In correlation with Fast and Furious, there were 7,600 documents released to the Justice Department. The internal emails that President Obama cited executive privilege over were exchanges that took place after February 4, 2011, which was when the Justice Department said that the ATF “always made every effort to interdict illegally purchased guns. …  As 2011 unfolded, however, the department walked back from that initial denial. Holder began an inspector general investigation into the matter, and in December the department rescinded the letter and acknowledged that it had been misleading,” according to a report from The New York Times. According to The Washington Post, “Ahead of the vote, Holder said in a letter to Obama that sharing the Fast and Furious documents ‘would raise substantial separation of powers concerns and potentially create an imbalance in the relationship’ between Congress and the White House. Releasing the documents ‘would inhibit candor of such executive branch deliberations in the future and significantly impair the executive branch’s ability to respond independently and effectively to congressional oversight,’ Holder wrote.”

A history of contempt

As if excited by an opportunity to attack the Obama administration, GOP House members, led by Issa, pushed for the vote to hold Holder in contempt of Congress for failing to turn over the Fast and Furious documents. The House Oversight and Reform Committee moved forward despite intervention by President Obama, who invoked executive privilege. A contempt citation is voted upon by Congress when it believes a witness is obstructing its ability to carry out the powers it is given by the Constitution.

This is the first case in which an attorney general has faced a contempt citation. The only other members of the executive branch who have been held in contempt of Congress are House Counsel Harriet Miers and Chief of Staff Joshua Bolten, who served under George W. Bush. As in Holder’s case, Miers and Bolten were both held in contempt despite a president’s assertion of executive privilege. This case was the first in which White House officials were found in contempt of Congress. Fast and Furious marks the second instance of contempt for White House officials and the first for an attorney general. And there are more similarities. Miers and Bolten were found in contempt for refusing to cooperate in the congressional investigation into allegations that the Bush White House was using the Justice Department for political ambitions. The GOP seems to be using the Fast and Furious case for the same purpose: Not really to find Holder in contempt of Congress, but as an opportunity to attack the Democratic Obama administration. Nancy Pelosi (D-Calif.) has called the move “strictly political.”

Holder, who has complied and produced more than 7,600 documents pertaining to the case, has said he offered to provide more documents, answer any questions Issa and his committee may have, and brief them on said documents. However, Issa still says Holder failed to cooperate. In a case that has been active since February 2011, House Speaker John Boehner accuses the Obama administration of previously lying and refusing to turn over documents. Holder says there has been no effort to deceive.

At Wednesday’s contempt proceedings, Rep. Elijah Cummings (D-Md.), top Democrat on the House Oversight and Government Affairs Committee, said that Issa could have resolved this matter with Holder, but instead chose partisan politics. He added, “In this case, it seems clear that the administration was forced into this position by the committee’s unreasonable insistence on pressing forward with contempt despite the attorney general’s good faith offer.” Holder is more than willing to comply in order to avoid a potential “Constitutional crisis.” Democrats are altogether horrified by the way Holder has been treated throughout this process, with some calling this “a sad day for Americans.”

A sad day, and perhaps a pointless one. For all the noise, little may come of the House vote. In previous cases of contempt, the president and Congress have negotiated a decision to avoid dealing with matters such as the extent of executive privilege and Congress’ power to subpoena. However, a 2007 Congressional Research Service report states that if “information is protected under executive privilege, past actions suggests that the Department of Justice will not pursue a prosecution.” Perhaps most important, a citation of contempt is only valid during the Congress that approved it, and congressional terms only last two years. If this case continues, it would most likely take at least two years to resolve. The result is that the battle over Fast and Furious may prove fruitless legally, but could create a lot of political opportunity for the GOP, who will most likely attempt to drag the matter out until November.