The con­tempt of Jus­tice

Eric Holder con­tin­ues to ob­struct the gun­run­ning in­quiry

The Washington Times Daily - - Editorial -

The Obama ad­min­is­tra­tion is as trans­par­ent as the blacked-out pa­pers the Jus­tice Depart­ment sends in re­sponse to con­gres­sional in­quiries into the Fast and Fu­ri­ous gun­run­ning scan­dal. At­tor­ney Gen­eral Eric H. Holder Jr. con­tin­ues his de­fi­ance of the House of Rep­re­sen­ta­tives, which found him in con­tempt last year for his re­fusal to hand over read­able doc­u­ments that could ex­plain why Mr. Holder and his depart­ment lied to Congress about the sale of guns to drug king­pins in Mex­ico.

The depart­ment asked the U.S. Dis­trict Court for the Dis­trict of Columbia to stand aside while the U.S. Court of Ap­peals de­liv­ers a “de­fin­i­tive res­o­lu­tion” of whether ex­ec­u­tive priv­i­lege ap­plies to doc­u­ments that don’t, as far as any­body knows, in­volve ad­vice pro­vided to the pres­i­dent him­self. A pres­i­dent can­not as­sert ex­ec­u­tive priv­i­lege in this way with­out re­call­ing Pres­i­dent Nixon’s at­tempt to block a re­quest for au­dio record­ings and pa­pers re­lated to the Water­gate scan­dal. In 1974, the Supreme Court unan­i­mously or­dered pro­duc­tion of the tapes.

“No court has ever held that ‘ex­ec­u­tive priv­i­lege’ ex­tends any­where near as far as the at­tor­ney gen­eral here con­tends that it does,” ar­gued Kerry W. Kircher, the gen­eral coun­sel for the House of Rep­re­sen­ta­tives. Grant­ing the pres­i­dent a power to de­clare the “work prod­uct” of any pub­lic em­ployee off-lim­its with a wave of his hand would en­able the White House to shut down any con­gres­sional in­ves­ti­ga­tion.

Many of Pres­i­dent Obama’s own al­lies are ap­palled by Mr. Holder’s con­duct. Only 67 of the 200 House Democrats ral­lied to the at­tor­ney gen­eral’s de­fense when he was held in con­tempt of Congress last year. Rather than do what he knows he should, he in­structs the Jus­tice Depart­ment to erect as many le­gal hur­dles as it can to de­lay the in­evitable.

Ex­hibit A in the case is a let­ter from an as­sis­tant at­tor­ney gen­eral to Sen. Chuck Grass­ley of Iowa in Fe­bru­ary 2011 claim­ing that “the al­le­ga­tion ... that [the Bureau of Al­co­hol, To­bacco, Firearms and Ex­plo­sives] ‘sanc­tioned’ or oth­er­wise know­ingly al­lowed the sale of as­sault weapons to a straw pur­chaser who then trans­ported them into Mex­ico is false.” Ten months later, the depart­ment “with­drew” this let­ter. The facts, which had leaked through the Wash­ing­ton sieve, were no longer “op­er­a­tive,” as a spokesman for Nixon once said of in­con­ve­nient Water­gate facts.

Ken­neth E. Mel­son, ATF’s then-act­ing di­rec­tor, said in a 2011 in­ter­view that the Jus­tice Depart­ment’s ar­gu­ments were not about pre­serv­ing con­sti­tu­tional pre­rog­a­tives, but about avoid­ing blame. “It ap­pears thor­oughly to us,” said Mr. Mel­son, “that the depart­ment is re­ally try­ing to fig­ure out a way to push the in­for­ma­tion away from their po­lit­i­cal ap­pointees at the depart­ment.”

With 10,000 lawyers, the Jus­tice Depart­ment will have no trou­ble de­vis­ing le­gal nov­el­ties to keep sand in the court’s wheels well into next year. But even­tu­ally there will be no more briefs to file, and the day of reck­on­ing will be at hand.

Rather than de­lay the in­evitable, Mr. Obama ought to live up to his cam­paign prom­ise to pro­vide trans­parency, and or­der Mr. Holder to do the right thing, and pro­duce the doc­u­ments.

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