Opinion: Shielding privileged executives from consequences of their actions

So President Obama has now asserted executive privilege in the congressional investigation of “Operation Fast and Furious.” Executive privilege is an important constitutional power that protects the office of the president from legislative encroachment. It is essential to the separation of powers — but it is not carte blanche for presidential secrecy. A president must have a legitimate reason to assert executive privilege; it cannot be used for the purpose of hiding wrongdoing by administration officials, especially to block a contempt citation.

Fast and Furious was a “felony stupid” law-enforcement operation that wound up putting thousands of weapons into the hands of dangerous criminals and major drug cartels. It continued until January 2011, when two weapons that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) had allowed across the Mexican border were found at the murder scene of Border Patrol agent Brian Terry. As testimony from several ATF whistleblowers showed, letting weapons “walk” was against all ATF rules and procedures— the Justice Department drums into all prosecutors the rule that you never let guns or drugs get away from you in any undercover operation.

For more than a year and a half, the House Oversight and Government Reform Committee and its chairman, Rep. Darrel Issa (R-Calif.), have patiently tried to get information from the Justice Department. The department has turned over only a small fraction of the documents being sought and many of those turned over were so full of redactions that it was “unnecessarily difficult and sometimes impossible for the Committee … to investigate decisions made by Department officials,” according to Issa. There are two pending subpoenas.

While DOJ has stonewalled, the committee has received a lot of relevant information from whistleblowers. For example, whistleblowers have supplied the committee with six wiretap applications that Attorney General Eric HolderEric Himpton HolderHolder: DOJ, FBI should reject Trump's requests Obama-linked group charts path for midterm elections Senators should be unanimous in their support of Haspel for CIA chief MORE refused to provide. Contrary to the sworn statement by Holder that the “inappropriate tactics,” as he has admitted, “were not initiated or authorized by Department leadership in Washington,” those wiretap applications — as well as other internal emails — show that political appointees such as Assistant Attorney General Lanny Breuer were well aware of the operation and its dangerous tactics. 

The Justice Department has unlawfully refused to provide Congress with information to which it is constitutionally entitled, information that is essential to exercising its oversight function. Holder has refused to answer — or provide the documents that would answer — the critical question being investigated: Which senior officials at DOJ were told about and/or approved this irresponsible operation and what was the rationale for doing so? Executive privilege does not extend to information that would provide the answer to those questions.

As former ATF Acting Director Kenneth Melson testified, “It appears thoroughly to us that [Justice] is really trying to figure out a way to push the information away from their political appointees at the department.”  

Holder’s June 19 letter requesting that President Obama assert executive privilege misled the president. Holder claimed that he only wants to shield information “concerning [DOJ’s] response to congressional oversight and related media inquiries” because Issa supposedly narrowed his request to that information. But the chairman only offered to narrow his committee’s request if Holder would agree to quit stonewalling. Holder refused to agree to that accommodation, so all of the other information being sought under the outstanding subpoenas about the planning, initiation, approval and conduct of Operation Fast and Furious is still outstanding. Moreover, that additional information isn’t even covered under Holder’s request or the apparent grant of privilege provided by the president. (There is no basis for asserting executive privilege on something as routine as responding to media inquiries).

In any event, the assertion of executive privilege appears to be just the latest gambit to keep any of the political appointees within a highly politicized Justice Department from having to take responsibility for the serious mistakes in judgment made in this operation. Those mistakes killed a U.S. agent and many Mexican citizens. It would be a rank abuse of the Constitution for the president to use executive privilege simply to prevent political embarrassment and to shield political appointees from the consequences of their ill-considered and careless judgment and actions.

Von Spakovsky is a senior legal fellow at The Heritage Foundation and a former Justice Department lawyer.