President Barack Obama invoked executive privilege Wednesday to withhold documents a House committee is seeking in an investigation of a flawed gun-smuggling probe in Arizona.
In a letter to Rep. Darrell Issa, R-Calif., a Justice Department official said the privilege applies to documents that explain how the department learned that there were problems with the investigation called Operation Fast and Furious.
At the start of a committee hearing, Issa called the president’s action “an untimely” assertion of the privilege. The committee will vote on whether to cite Attorney General Eric Holder for contempt of Congress for failing to turn over the documents.
“The president has asserted executive privilege,” Deputy Attorney General James Cole said in the letter to Issa.
“We regret that we have arrived at this point, after the many steps we have taken to address the committee’s concerns and to accommodate the committee’s legitimate oversight interests,” said Cole.
House Speaker John Boehner, R-Ohio, raised another question after the president invoked the privilege.
“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 Boehner’s press secretary Brendan Buck. “The administration has always insisted that wasn’t the case. Were they lying, or are they now bending the law to hide the truth?”
The likelihood of a contempt vote rose after Holder and Issa failed to reach agreement Tuesday in a 20-minute meeting at the Capitol.
During the committee’s year-and-a-half-long investigation, the department has turned over 7,600 documents about the conduct of the Fast and Furious operation. However, because Justice initially told the committee falsely the operation did not use a risky investigative technique known as gun-walking, the panel has turned its attention from the details of the operation and is now seeking documents that would show how the department headquarters responded to the committee’s investigation.
In Fast and Furious, federal agents from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives in Arizona abandoned the agency’s usual practice of intercepting all weapons they believed to be illicitly purchased. Instead, the goal of gun-walking was to track such weapons to high-level arms traffickers, who had long eluded prosecution, and to dismantle their networks.
Gun-walking has long been barred by Justice Department policy, but federal agents in Arizona experimented with it in at least two investigations during the George W. Bush administration before Fast and Furious. These experiments came as the department was under widespread criticism that the old policy of arresting every suspected low-level “straw purchaser” was still allowing tens of thousands of guns to reach Mexico. A straw purchaser is an illicit buyer of guns for others.
The agents in Arizona lost track of many of the weapons in Operation Fast and Furious. Two of the guns that “walked” in the operation were found at the scene of the slaying of U.S. border agent Brian Terry.
Issa wanted the documents immediately. Holder told reporters he would not turn over documents on the gun-smuggling probe unless Issa agreed to another congressional briefing on the Justice Department material. Holder wanted an assurance from Issa that the transfer of the records would satisfy a subpoena from the House Oversight and Government Reform Committee, which Issa heads.
“If we receive no documents, we’ll go forward” with a contempt vote, Issa told reporters.
If the committee votes to recommend that Holder be held in contempt of Congress, its recommendation would go next to the full House for a vote although House leaders are not required to call it up for a vote. They could instead use the threat of that to pressure for renewed negotiations.
Historically, at some point Congress and president negotiate agreements, because both sides want to avoid a court battle that could narrow either the reach of executive privilege or Congress’ subpoena power.
Ordinarily, such deliberative documents as those that Issa is seeking are off-limits to Congress. In Operation Fast and Furious, the Justice Department’s initial incorrect denials are seen as providing justification for the additional demands.
Issa and the House Republican leadership have asked whether the department’s initial denial in a Feb. 4, 2011, letter to Sen. Charles Grassley, R-Iowa, was part of a broader effort to obstruct a congressional investigation.
The material “pretty clearly demonstrates that there was no intention to mislead, to deceive,” Holder told reporters.