Boehner Blog – WH's Irrational Response

Editor’s Note – From the official Blog of the Speaker of the House of the United States of America.

Out of Order: The White House’s Irrational Response on Executive Privilege

Posted by Brendan Buck and Kevin Smith – Boehner’s official  Blog

Yesterday, House Oversight & Government Reform Chairman Darrell Issa (R-CA) sent a letter to the president pressing him to explain the basis for invoking executive privilege over Department of Justice documents requested as part of the Fast and Furious investigation.  The letter states, in part:

Speaker of the House, John Boehner

“Courts have consistently held that the assertion of the constitutionally-based executive privilege – the only privilege that ever can justify the withholding of documents from a congressional committee by the Executive Branch – is only applicable with respect to documents and communications that implicate the confidentiality of the President’s decision-making process, defined as those documents and communications to and from the President and his most senior advisors.  Even then, it is a qualified privilege that is overcome by a showing of the committee’s need for the documents.  The letters from Messrs. Holder and Cole cited no case law to the contrary.” 

In legal decisions on the scope of executive privilege during the Bush and Clinton administrations, judges consistently ruled that executive privilege does NOT extend to Cabinet level officials or their staffs.  As the DC Circuit Court wrote in 2004 in its Judicial Watch, Inc. v. Department of Justice decision, “communications of staff outside of the White House in executive branch agencies that were not solicited and received by such White House advisors could not [be covered by executive privilege].”  Also, as noted in this CRS report, the DC Circuit Court ruled in 1997, “the presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decision-making by the President.”

The White House appears to know this. This morning, White House spokesman Eric Schultz responded to Chairman Issa’s letter by saying, “the Courts have routinely considered deliberative process privilege claims and affirmed the right of the executive branch to invoke the privilege even when White House documents are not involved.” [emphasis added]

But the president didn’t assert “deliberative process privilege” – he asserted executive privilege, which is reserved to protect internal White House decision-making. When presidents have asserted it over other executive branch documents and communications, either courts have ruled those claims to be invalid and ordered them overturned OR the White House has relented and provided Congress with the documents that were requested.

So where does that leave its claim of executive privilege?  The White House – through interviews with the president and statements made by White House staff – has consistently denied any knowledge of facts surrounding the Fast & Furious operation or the death of U.S. Border Patrol Agent Brian Terry.  But Republicans never suggested the White House was involved.  That’s why the president’s assertion of executive privilege was so surprising and troubling, and why Speaker Boehner said last week that the decision to invoke executive privilege is “an admission” that White House officials were involved in some way.  After all, if the White House wasn’t involved, why would it assert executive privilege?

There are two – and only two – explanations: either the documents requested will show White House involvement in the fallout and cover-up of the operation – or the president’s executive privilege claim is frivolous. As Issa’s letter explains:

“Accordingly, your privilege assertion means one of two things.  Either you or your most senior advisors were involved in managing Operation Fast & Furious and the fallout from it, including the false February 4, 2011 letter provided by the Attorney General to the Committee, or, you are asserting a Presidential power that you know to be unjustified solely for the purpose of further obstructing a congressional investigation.  To date, the White House has steadfastly maintained that it has not had any role in advising the Department with respect to the congressional investigation.  The surprising assertion of executive privilege raised the question of whether that is still the case.”

So which is it?

Back in 2007, then-Senator Obama clearly didn’t think that asserting executive privilege was a matter of “principle.”  Something in the documents the White House is now hiding from disclosure seems to have changed his mind.  Unless the administration cooperates before Thursday, a vote of contempt is necessary so the House can continue its efforts to find out the truth and provide answers for the family of U.S. Border Patrol Agent Brian Terry.

Time for a Perp-Walk, Holder must go – utter contempt

Update at 5:30 PST, the following diagram comes from the House Committee on Oversight and Government Reform and is very revealing. The cover up is in full bloom and Issa will get to the bottom of this. At SUA, we feel it strains credulity how the DoJ and White House are handling this. Can you say “Watergate”? It’s always the cover up!

Please notice the web site at the bottom. Please go to the site for details here: fastandfuriousinvestigation.com. There 70 Inspectors General in the DoJ, yet, a very small amount on information has come forward since February 4th, the date the cover up began it appears.

Additionally, look at the victims in this PDF document.

By Scott W. Winchell

The White House and Congressional Democrats, in anticipation of continued hearings on the Fast and Furious debacle are attempting to down play the events to protect Eric Holder and the DoJ staff by producing their own reports on the episodes involved. The reason, Holder may be held in contempt of Congress, and therefore criminally liable.

In 1857, Congress enacted a law which made “contempt of Congress” a criminal offense against the United States.

These attempts (summarized below) include spreading the blame back into the Bush administration, and blaming field operations of acting in the wrong, of which top management at DoJ were unaware. Their conclusions do not carry the weight of the hearings however, and will not change the committee’s findings, and are by definition politically charged.

Issa to Holder - Contempt of Congress

It is a clear attempt to muddy the waters in the court of public opinion, but what really counts will be the House Oversight and Government Reform Committee who will determine where the case goes.

Having the force of law behind them, including subpoena powers and contempt of Congress charges looming, no matter what the left does, if Holder is guilty as SUA has been charging, its this committee’s actions that actually count.

Dennis Wagner at USA Today writes – A U.S. House minority report on the gun-smuggling probe known as Fast and Furious blames federal agents in Arizona for the flawed operation while exonerating top-level Justice Department officials.

The 89-page analysis, released Tuesday by Rep. Elijah Cummings, D-Md., ranking minority member of the House Committee on Oversight and Government Reform, is based upon five congressional hearings, testimony from 22 witnesses and about 12,000 pages of documents.

Its conclusion: “Operation Fast and Furious was the latest in a series of fatally flawed operations run by ATF agents in Phoenix and the Arizona U.S. Attorney’s Office. Far from a strategy that was ‘directed and planned by the highest levels of the Department of Justice,’ as some have alleged, the committee has obtained no evidence that Operation Fast and Furious was conceived or directed by high-level political appointees at Department of Justice headquarters.”

Additionally,

From Newsday – Democrats looking into Operation Fast and Furious say a yearlong investigation has turned up no evidence that the flawed gun smuggling probe was conceived or directed by high-level political appointees at Justice Department headquarters.

The probe, the Democrats say, was just one of four such operations that were part of a misguided five-year-long effort, during both the administrations.

Meanwhile, Darrel Issa, chair of the committee, is righteously incensed at the way the administration has lied, obfuscated, and withheld crucial information – pure contempt of Congress.

William Lajeunesse at Fox News writes: The head of the House Oversight and Government Reform Committee is threatening to hold Attorney General Eric Holder in contempt of Congress if he fails to comply with congressional subpoenas for documents.

Holder has until Feb. 9 to comply.

In a four-page letter to Holder, Committee Chairman Darrell Issa, R-Calif., claims the Department of Justice has “misrepresented facts and misled Congress,” which began its investigation of Operation Fast and Furious one year ago.

Holder must be forced out of his office for contempt and other crimes, gross insubordination, ineptitude, obstruction of justice, perjury, and dereliction of duty. He should be accompanied by his hand-picked staff, and each should be tied to his perp-walk right out the front door of the Department of Justice and into the lock-up.

_____________________________

Report Unloads on ATF for Mexican ‘Gunwalking’

By Robert Beckhusen

Wired Danger Room

Days before Attorney General Eric Holder is once again hauled before Congress to testify for Operation Fast and Furious, a new report sheds light on whether high-ranking officials knew, or have been honest about, one of the biggest failures in Justice Department history: a disastrous plan by the Bureau of Alcohol, Tobacco and Firearms to allow gunrunners to “walk” firearms into the hands of Mexico’s Sinaloa Cartel.

These questions are crucial because Fast and Furious has not only become a huge political issue, it also determines who will take responsibility for allowing thousands of guns to move unimpeded into a war zone south of the U.S.-Mexico border. The gunwalking operation — an attempt to build cases by not stopping but monitoring the flow of U.S. straw-purchased weapons to Mexico’s cartels — eventually saw the ATF lose track of more than 2,000 gunsmany in the hands of cartel hitmen.

Hundreds of weapons recovered at crime scenes in Mexico were later traced to Fast and Furious, including AK-47 variant rifles discovered at the scene of a Dec. 14, 2010, shootout between border bandits and a Border Patrol BORTAC tactical unit in Arizona. Border Patrol agent Brian Terry was killed in the fight.

But Fast and Furious wasn’t the first operation to run guns. The report, released by House Democrats, describes the plot as “the latest in a series of fatally flawed operations run by ATF agents in Phoenix and the Arizona U.S. Attorney’s Office,” beginning with the 2006-2007′s Operation Wide Receiver. In the beginning, Phoenix-based ATF agents “went forward with plans to observe or facilitate hundreds of suspected straw firearm purchases,” according to the report. Faced with the risk of losing track of the guns, Wide Receiver was shuttered.

In two cases, named the “The Hernandez Case” and “The Medrano Case,” the ATF watched groups of conspirators cross into Mexico carrying straw-purchased guns. In “Medrano,” smugglers snuck more than 100 firearms into Mexico while under observation by the ATF.

Fast and Furious was much bigger, with greater potential rewards — and risks — for field agents, involving “a sizable network the operation of straw puchasers [the ATF] believed were trafficking military-grade assault weapons to Mexican drug cartels.” But then the operation went badly wrong. Guns disappeared, or appeared after gunfights with the Mexican military or in stash houses. Then agent Terry was shot.

Questions, however, linger over the role of senior administration officials — a sticking point for House Republicans. Late Friday, the Justice Department released e-mails between an aide to Attorney General Eric Holder and Dennis Burke, the former United States Attorney for the District of Arizona (who later resigned over the scandal), discussing Terry’s death the next morning. Two messages from headquarters (the location was redacted in the release) informed Burke of the shooting. The second e-mail, at 3:31 a.m. contained one line: “Our agent has passed away.”

“Horrible,” Burke replied at 9:09 a.m. that morning. Thirty-two minutes later, Burke e-mailed Holder aide Monty Wilkinson. “Not good,” Burke said.

“Tragic,” Wilkinson wrote back. “I’ve alerted the AG, the Acting [Deputy Attorney General], Lisa, etc.” That evening, Wilkinson sent Burke another message: “The guns found in the desert near the murder BP officer connect back to the investigation we were going to talk about — they were AK-47s purchased at a Phoenix gun store.”

But according to the Democrats’ report, Wilkinson never followed up with Holder about the link, nor did he discuss it again with Burke — which doesn’t, on its face, contradict Holder’s previous testimony that he’d only heard of the operation after the scandal became public.

“The Committee has obtained no evidence indicating that the Attorney General authorized gunwalking or that he was aware of such allegations before they became public,” said the report. “None of the 22 witnesses interviewed by the Committee claims to have spoken with the Attorney General about the specific tactics employed in Operation Fast and Furious prior to the public controversy.”

The same was not true for then-Acting ATF Director Kenneth Melson, who was reassigned after lying to investigators over whether he knew about the operation (he received regular briefings, in fact, the report says). Questions also linger for then-Deputy Director William Hoover, also sacked, and why he “failed to inform” senior Justice Department officials about his concerns with the operation.

But did Holder’s aide, Wilkinson, really ever tell Holder? As of today’s report, that’s just speculation. However, expect Holder to get grilled on this subject very soon.