Holder’s contempt and Obama’s privilege
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.