Commentary Magazine


Topic: executive privilege

House GOP Releases First F&F Report

The House Oversight Committee is holding five Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) officials responsible in the Fast and Furious operation failures, according to a draft report released last night:

The report determined that five officials in the ATF were responsible, ranging from a former low-ranking special agent to the former acting head of the agency. Congressional investigators called attention to the weak leadership at the ATF and pushed for the agency to be strengthened.

“Strong leadership is needed at ATF to overcome the deep scars left by Operation Fast and Furious,” the report states. “Greater accountability within ATF would underscore that ineffective supervision and recklessness both have consequences.”

Specifically, the report pins blame on former Special Agent in Charge of the Phoenix Field Division William Newell, former Deputy Assistant Director for Field Operations William McMahon, former Assistant Director for Field Operations Mark Chait, the former Deputy Director William Hoover, and former acting ATF director Kenneth Melson.

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The House Oversight Committee is holding five Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) officials responsible in the Fast and Furious operation failures, according to a draft report released last night:

The report determined that five officials in the ATF were responsible, ranging from a former low-ranking special agent to the former acting head of the agency. Congressional investigators called attention to the weak leadership at the ATF and pushed for the agency to be strengthened.

“Strong leadership is needed at ATF to overcome the deep scars left by Operation Fast and Furious,” the report states. “Greater accountability within ATF would underscore that ineffective supervision and recklessness both have consequences.”

Specifically, the report pins blame on former Special Agent in Charge of the Phoenix Field Division William Newell, former Deputy Assistant Director for Field Operations William McMahon, former Assistant Director for Field Operations Mark Chait, the former Deputy Director William Hoover, and former acting ATF director Kenneth Melson.

The Hill reports that all five of these officials have been reassigned to other positions. But this oversight report is just the beginning. There are two more reports set to be released, which will both deal with the Department of Justice directly. According to The Hill, the next one will be focused on the deputy attorney general’s office, and the third one will address the failings at the top level of the attorney general’s office and AG Eric Holder. The point of the staggered release may be to give Obama time to back down on executive privilege, Allahpundit writes:

The point of this leak, I assume, is to give Obama one last chance to drop his executive privilege claim over the DOJ documents that [Rep. Darrell] Issa wants to see. (The LAT quotes the report as saying it’s based on “the best information available as of now.”) If he does that, then the report will be held back while GOP investigators go through the new evidence. If he doesn’t do it, then the GOP can argue that there must be nothing in those e-mails that exculpates any of the five guys they’ve named.

Anybody think there’s a chance of this happening? Me neither.

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Issa Confronts WH About F&F Involvement

Via the Daily Caller, House Oversight Committee Chair Darrell Issa sent a letter to the White House this morning directly challenging its use of executive privilege to obstruct the Fast and Furious investigation. Issa asserted what others have been saying for days now: the executive order suggests that the White House was either involved in some aspect of the Fast and Furious debacle, or the order was unwarranted.

“[Y]our privilege assertion means one of two things,” Issa wrote to the president in a letter dated June 25. “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.”

Issa said Obama’s assertion of executive privilege “raised the question” about the veracity of how the “White House has steadfastly maintained that it has not had any role in advising the department with respect to the congressional investigation.”

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Via the Daily Caller, House Oversight Committee Chair Darrell Issa sent a letter to the White House this morning directly challenging its use of executive privilege to obstruct the Fast and Furious investigation. Issa asserted what others have been saying for days now: the executive order suggests that the White House was either involved in some aspect of the Fast and Furious debacle, or the order was unwarranted.

“[Y]our privilege assertion means one of two things,” Issa wrote to the president in a letter dated June 25. “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.”

Issa said Obama’s assertion of executive privilege “raised the question” about the veracity of how the “White House has steadfastly maintained that it has not had any role in advising the department with respect to the congressional investigation.”

This makes it clear that the Eric Holder contempt vote scheduled for Thursday isn’t going to be the end of the story, at least not if Issa can help it. Obama’s assertion of executive privilege can be overturned — under certain circumstances — by Congress or the Supreme Court, and Issa seems to be making a preliminary case for that in this letter.

Issa also gave details on the 11th hour “deal” Holder offered him before the committee contempt vote last week:

“He indicated a willingness to produce the ‘fair compilation’ of post-February 4 documents,” Issa wrote to the president. “He told me that he would provide the ‘fair compilation’ of documents on three conditions: (1) that I permanently cancel the contempt vote; (2) that I agree the department was in full compliance with the committee’s subpoenas, and; (3) that I accept the ‘fair compilation,’ sight unseen.”

That deal is a joke — a permanent cancellation of the contempt vote and an agreement that the Department of Justice cooperated fully in exchange for a stack of documents of Holder’s choosing, “sight unseen”? Issa obviously would never accept such an agreement, and Holder had to have known that. Was Holder was trying to give himself some cover by offering a deal that would likely get rejected, so that he could claim Issa was the one who was unreasonable? Either that, or Holder was actually desperate enough to think Issa might go along with it.

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Left Can’t Defend Obama’s Privilege

Democrats and the political left hammered the Bush administration for using executive privilege, and are now faced with trying to justify President Obama’s much more questionable use of it. This isn’t as tricky for the Democratic politicians — they’re partisans, and it’s not exactly surprising they have a double-standard based on which party is in power. But left-wing pundits, columnists and bloggers (at least the ones who want to avoid being labeled as hacks) seem to be having a hard time justifying it.

Take Eugene Robinson’s valiant effort in today’s Washington Post:

These are the facts, and they don’t cover any Justice Department officials with glory. But neither do they remotely justify the partisan witch hunt by House Republicans who threaten, without legitimate cause, to hold Attorney General Eric H. Holder Jr. in contempt of Congress. Obama has responded by asserting executive privilege — effectively shutting down the inquisition.

The House wants to go fishing in a vast sea of documents, some of which relate to ongoing investigations. As a believer in sunshine and disclosure, I don’t much care for questionable claims of executive privilege. But I like the politically motivated sideshow the GOP is staging even less.

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Democrats and the political left hammered the Bush administration for using executive privilege, and are now faced with trying to justify President Obama’s much more questionable use of it. This isn’t as tricky for the Democratic politicians — they’re partisans, and it’s not exactly surprising they have a double-standard based on which party is in power. But left-wing pundits, columnists and bloggers (at least the ones who want to avoid being labeled as hacks) seem to be having a hard time justifying it.

Take Eugene Robinson’s valiant effort in today’s Washington Post:

These are the facts, and they don’t cover any Justice Department officials with glory. But neither do they remotely justify the partisan witch hunt by House Republicans who threaten, without legitimate cause, to hold Attorney General Eric H. Holder Jr. in contempt of Congress. Obama has responded by asserting executive privilege — effectively shutting down the inquisition.

The House wants to go fishing in a vast sea of documents, some of which relate to ongoing investigations. As a believer in sunshine and disclosure, I don’t much care for questionable claims of executive privilege. But I like the politically motivated sideshow the GOP is staging even less.

If you say you’re a “believer in sunshine and disclosure” only in situations when the people requesting the information have motives you personally approve of, then you probably aren’t a believer in sunshine and disclosure. Maybe you believe in it with limits or in times when your party is in power — fine. But Robinson is no principled sunshine advocate. He thinks there should be different rules for different sides, and would be better off admitting it than trying to act as if this was a weighty decision he came to after struggling against his deep-rooted respect for government transparency.

But this is really the only argument the left can make — that they dislike the use of executive privilege, but this “politically-motivated witch hunt” is one of those rare circumstances when it’s necessary. And that would be fine, if there wasn’t already plenty of evidence indicating that the DOJ has tried to mislead the Congress on this investigation. And if past investigations that the left has cheered on — i.e. the Plame affair — hadn’t clearly been blatantly politically motivated.

If this is the greatest defense from the left, then the Democrats are in trouble. No wonder Jon Stewart has already abandoned them on this.

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Obama’s Surprise Decision and the Media

There have been some great examples of mainstream reporting on Fast and Furious, but for the most part the MSM has brushed it off as a puffed-up controversy kept alive by Republicans who enjoy antagonizing Eric Holder. Now that President Obama has started acting as if the White House has something to hide, it seems very possible that the long-held conservative suspicions are right — this isn’t a manufactured political issue, but one that could go into much deeper, shadier territory than initially thought.

If Obama was truly concerned about the investigation becoming a political distraction — as the White House maintains — then why would he insert himself into the controversy and throw fuel on the fire?

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There have been some great examples of mainstream reporting on Fast and Furious, but for the most part the MSM has brushed it off as a puffed-up controversy kept alive by Republicans who enjoy antagonizing Eric Holder. Now that President Obama has started acting as if the White House has something to hide, it seems very possible that the long-held conservative suspicions are right — this isn’t a manufactured political issue, but one that could go into much deeper, shadier territory than initially thought.

If Obama was truly concerned about the investigation becoming a political distraction — as the White House maintains — then why would he insert himself into the controversy and throw fuel on the fire?

House Speaker John Boehner is apparently wondering the same thing:

“Until now, everyone believed that the decisions regarding ‘Fast and Furious’ were confined to the Department of Justice,” Boehner spokesman Brendan Buck said in a statement.

“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. The Administration has always insisted that wasn’t the case. Were they lying, or are they now bending the law to hide the truth?” Buck said.

Administration officials dispute the implication, pointing to several cases under Republican administrations where executive privilege was invoked on behalf of agencies.

If Obama’s White House is trying to shield its participation in Fast and Furious or a subsequent cover up, that runs counter to a Watergate-era Supreme Court ruling, which holds that executive privilege can’t be used to obscure wrongdoing. Todd Gaziano writes at the Heritage Foundation:

First, the Supreme Court in United States v. Nixon (1974) held that executive privilege cannot be invoked at all if the purpose is to shield wrongdoing. The courts held that Nixon’s purported invocation of executive privilege was illegitimate, in part, for that reason. There is reason to suspect that this might be the case in the Fast and Furious cover-up and stonewalling effort. Congress needs to get to the bottom of that question to prevent an illegal invocation of executive privilege and further abuses of power. That will require an index of the withheld documents and an explanation of why each of them is covered by executive privilege—and more.

Will the media accept the White House’s defense that it’s simply trying to stop a political witch hunt? Or will Obama’s surprise decision to invoke executive privilege be the catalyst that finally springs this story into the mainstream?

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