Holder’s con­tempt and Obama’s priv­i­lege

The Washington Times Weekly - - Editorials -

Pres­i­dent Obama’s at­tempt to in­voke ex­ec­u­tive priv­i­lege to fore­stall con­tempt-of-Congress pro­ceed­ings against At­tor­ney Gen­eral Eric H. Holder Jr. failed. In­stead, the claim el­e­vates the dis­pute be­tween the ad­min­is­tra­tion and Capi­tol Hill to a new and trou­bling level. The op­er­a­tive ques­tion now is, what did the pres­i­dent know and when did he know it?

The House Over­sight and Govern­ment Re­form Com­mit­tee voted on June 20 to rec­om­mend a con­tempt charge against Mr. Holder. Since Oc­to­ber, the Jus­tice Depart­ment has re­fused to re­spond to a sub­poena seek­ing 1,300 pages of doc­u­ments re­lated to the botched Fast and Fu­ri­ous Mex­i­can gun­run­ning op­er­a­tion. Ne­go­ti­a­tions be­tween the Jus­tice Depart­ment and com­mit­tee Chair­man Dar­rell E. Issa, Cal­i­for­nia Repub­li­can, broke down, and the con­tempt re­com- men­da­tion fol­lowed.

Mr. Obama’s last-minute move to ex­tend the um­brella of ex­ec­u­tive priv­i­lege raises the ques­tion of whether the pres­i­dent or his staff had ex­ten­sive prior knowl­edge of the op­er­a­tion, be­cause this priv­i­lege can only be in­voked when the chief ex­ec­u­tive’s of­fice is in­volved. “Un­til now, ev­ery­one be­lieved that the de­ci­sions re­gard­ing Fast and Fu­ri­ous were con­fined to the Depart­ment of Jus­tice,” said Michael Steel, spokesman for House Speaker John A. Boehner, Ohio Repub­li­can. “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.”

Mr. Holder claims the doc­u­ments in ques­tion are in­ter­nal and de­lib­er­a­tive and thus are records that tra­di­tion­ally are re­moved from con­gres­sional over­sight. The com­mit­tee is in­ves­ti­gat­ing the role Mr. Holder played in th­ese very de­lib­er­a­tions and how much he knew about the op­er­a­tion. He swore un­der oath that his in­volve­ment was lim­ited and came late in the game, but he is with­hold­ing ev­i­dence that could ei­ther sup­port or un­der­cut his tes­ti­mony. White House in­ter­ven­tion gives the ap­pear­ance that Mr. Holder’s stonewalling was not to pro­tect him­self from a per­jury charge, but to con­ceal hitherto un­known Oval Of­fice in­volve­ment in Fast and Fu­ri­ous. This also may ex­plain why Mr. Holder said that what should have been a rou­tine in­ves­ti­ga­tion could lead to a “con­sti­tu­tional cri­sis.”

Mr. Obama has an affin­ity for ex­ert­ing uni­lat­eral power, so the at­tempt to ex­tend ex­ec­u­tive priv­i­lege ought not to come as a sur­prise. Former Pres­i­dent Bill Clin­ton made no such ef­fort when his at­tor­ney gen­eral, Janet Reno, faced a con­tempt charge from the same com­mit- tee in 1998. That dis­pute was re­solved even­tu­ally with­out any broad claims of au­thor­ity even though Mr. Clin­ton did ex­er­cise the priv­i­lege on 14 other oc­ca­sions.

The dan­ger in the ad­min­is­tra­tion’s strat­egy is that con­gres­sional in­ves­ti­ga­tors may al­ready have ob­tained doc­u­ments by other means. Ear­lier this month, Mr. Issa re­vealed that an anony­mous whistle­blower had pro­vided wire­tap ap­pli­ca­tions re­lated to Fast and Fu­ri­ous that had been un­der a fed­eral court seal. Those pa­pers by them­selves prob­a­bly have no bear­ing on Mr. Holder’s case or on the mat­ter of White House par­tic­i­pa­tion, but it is pos­si­ble that Mr. Issa may yet ob­tain other ma­te­rial di­rectly con­tra­dict­ing Mr. Holder’s sworn tes­ti­mony or re­veal­ing White House in­volve­ment. It re­mains to be seen whether this in­ves­ti­ga­tion will pro­duce a smok­ing gun.

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