Obama administration needs to renew its pledge to greater transparency

Having successfully stonewalled Congress’s investigation of the failed federal gun trafficking operation known as “Fast and Furious”, the Obama administration now seeks to block judicial intervention. Although they have so far failed, Department of Justice (DOJ) lawyers have repeatedly attempted to derail a lawsuit brought by the House Committee on Oversight and Government Reform by claiming the courts lack jurisdiction.

At the center of the suit is the president’s claim of executive privilege that led the House to issue a subpoena for the requested documents related to Fast and Furious. The House held Attorney General Eric Holder in contempt for refusing to hand over key documents germane to the investigation and eventually it sued in federal court to force the administration to cooperate.

Blocking the people’s branch from exercising its investigative powers is serious enough, absent a credible claim of executive privilege – one that demonstrates a clear public interest in protecting government information from disclosure. That basic standard for an executive privilege claim does not hold in this controversy, and now the administration has taken its hard-line stance to the next level in seeking to prevent the last remaining institution with the authority to hold it accountable from deciding the case.

Earlier this year D.C. District Court Judge Amy Berman Jackson rejected the administration’s view that it had “an unreviewable right to withhold materials from the legislature” noting that such a proposition “would offend the Constitution.” In countering the administration’s argument that the concept of separation of powers prevents the judiciary from deciding the case, Jackson noted that “the Constitution contemplates not only a separation, but a balance, of powers.”

We agree. In fairness, all presidents try to withhold some information from Congress, the courts, the press, and the public. Only through determination and persistence is it possible to challenge presidential secrecy claims. To take an example, several years ago the George W. Bush administration tried to prevent the D.C. District Court from deciding an executive privilege case dealing with a claim that former White House staffers have absolute immunity from congressional testimony. That effort failed as Judge John D. Bates declared that his court did have jurisdiction to hear the case and that the executive must be accountable to Congress and the courts.

The Obama Administration is charting a similar path here. It has so far stonewalled a congressional investigation not only into the failed federal gun-tracking program but also the death of a U.S. border agent. Not even the Nixon or Bush II administrations could have done better to thwart legislative oversight and prevent a full and open accounting of such a controversy.

It has been five years since candidate Obama declared that he would bring to the White House a new level of accountability and transparency. As president, Obama pledged: “Information will not be withheld just because I say so. It will be withheld because a separate authority believes my request is well grounded in the Constitution. Let me say it as simply as I can, transparency and the rule of law will be the touchstones of this presidency."

The Fast and Furious controversy shows how Obama’s actions have failed to live up to his transparency promises. The president’s shift is profound, as his administration now attempts to prevent the federal courts from providing the “separate authority” he once argued was so vital to the integrity of our constitutional values.

If the Constitution and rule of law are to prevail then Obama should order his Administration to cooperate with the ongoing investigation and disclose the requested information about Fast and Furious. Based on some notable past actions, the president has shown himself willing to shift stands on key separation of powers issues, and indeed there is no shame in doing so, especially when he ultimately gets it right. 

It is an admirable trait in a leader to change a course of action after due consideration. The president did so regarding possible military intervention in Syria and more recently over a controversy whether his chief technology officer must testify on the Hill over the Obamacare rollout troubles.  He needs to do so now regarding the congressional investigation of Fast and Furious before his administration's actions escalate a serious constitutional conflict.

Sollenberger is associate provost at University of Michigan-Dearborn. Rozell is acting dean of the School of Public Policy at George Mason University. They are co-authors of the book “The President’s Czars: Undermining Congress and the Constitution” (2012).