The Department of Justice is asserting that the governor of Texas, as well as state legislators, have no executive or deliberative process privilege to shield documents -- even as Eric Holder and President Obama assert executive and deliberative process privilege to shield documents from Congress in its investigation of Fast & Furious. That refusal has already resulted in Holder being held in contempt by the House of Representatives in a 255-to-67 vote that was joined by 17 Democratic representatives.
On June 20, Deputy Attorney General James Cole sent a letter to Rep. Darrell Issa informing him that President Obama was asserting executive privilege over all documents after Feb. 4, 2011, “generated in the course of the deliberative process concerning the Department’s response to congressional oversight and related media inquires.” Feb. 4 was the date that Justice sent a letter to Congress falsely denying that the Department had allowed weapons to cross the border, claiming that federal authorities made “every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico.” It was not until Dec. 2, 2011, 10 months later, that the Justice Department withdrew that denial and acknowledged that Operation Fast and Furious was “fundamentally flawed.”
But Deputy Attorney General Cole’s June 20th letter made no mention of all the documents generated prior to Feb. 4 sought by the House Committee on Oversight and Government Reform directly related to the initiation, planning, approval and implementation of Operation Fast and Furious. When Eric Holder sent a letter to the president on June 19 requesting that President Obama assert executive privilege, he said that executive privilege is “fundamental to the operation of Government and inextricably rooted in the separation of power under the Constitution,” quoting U.S. v. Nixon.
This belated and questionable assertion of executive privilege (even if some of the documents are arguably covered) is one reason the House voted to cite Holder for contempt. At a bare legal minimum, the president should have provided detailed information to Congress on which specific documents are supposedly covered by what privilege, and should have turned over the remaining 70,000-plus pre-Feb. 4th documents over which no claim of privilege has been invoked.
As if the DOJ stonewalling of Congress is not bad enough, however, Eric Holder apparently does not believe that executive privilege is either “fundamental,” as he put it, or even legitimate to the operation of state governments. His Justice Department is in litigation with the Lone Star State over its new voter ID law. After the Justice Department objected to this common-sense election reform on the erroneous claim that it is discriminatory and violates Section 5 of the Voting Rights Acts, Texas filed suit in federal district court in the District of Columbia.
Trial is set to begin on July 9. The parties have been waging a discovery battle as the Justice Department has sought to take the depositions of state officials and to obtain voluminous amounts of privileged documents.
In fact, the Justice Department filed motions in April and May to compel Texas to produce those documents. In one motion filed on April 25, DOJ argued that there was no “deliberative process privilege over documents in the possession, custody, or control of the Office of the Governor.” The Texas governor has a potentially stronger claim of privilege than even the one asserted by President Obama, because Obama is shielding DOJ documents and agency deliberations that do not involve his own White House communications and his own personal decisions. In other words, the very type of stronger executive privilege that would protect presidential communications is, according to Eric Holder, non-existent when it comes to the chief executive of Texas.
In that same motion, Holder asserts that there is no privilege protecting “communications between a legislator and a state agency, as well as to purely internal documents produced by a state agency after communications with a legislator.” Yet in the Fast and Furious investigation, Holder has asserted that executive privilege covers his department’s communications and “purely internal documents.” Compare DOJ’s claim in the Texas case to the statement of White House spokesman Eric Schultz who said that 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.”
DOJ also argued that there is no legislative privilege shielding communications between and by state legislators similar to the “Speech or Debate Clause” that protects congressional representatives under the Constitution. DOJ tried to convince the court that even if there was such a privilege, it should “yield to the important federal interest in enforcing the Voting Rights Act” and should be “abrogated” because of the supposedly “extraordinary procedural irregularities associated” with the passage of the voter ID law.
The other interesting fact in this litigation that again shows up the Holder Justice Department, as well as the White House, is that Texas produced a detailed privilege log that describes the documents the state is withholding, as is required in any dispute over privileged documents. Justice argued in its motion to compel that “the privilege log [produced by Texas] is insufficient to determine the propriety of the assertion of privilege over some documents.”
Yet the Obama administration has produced no such privilege log or list whatsoever of the documents it claims are shielded from disclosure. The whole purpose of such a log is to make sure each document has been thoroughly reviewed by the party claiming the privilege so that no broad, sweeping claim is made without an individual review. And as Justice argues in the Texas case, it gives that other party the ability to contest the attachment of the privilege to specific documents that the party does not believe should be shielded. But the Holder Justice Department and the White House have not complied with this requirement.
Note, too, that at the same time President Obama and the Attorney General are claiming privilege over post-Feb. 4th documents and communications produced in response to the congressional investigation and media inquiries, the Justice Department sought to compel Texas to produce all documents “regarding communications that post-date the enactment of [the voter ID law].” This includes all of the communications of the speaker of the Texas House of Representative “in preparation for speeches and other events” (which would no doubt include responding to media inquiries). The court ruled that because these speeches and events are “political” in nature, Texas had to produce them. It is hard to argue that Justice Department materials produced in response to media inquiries are not “political” in nature; they are the very essence of “political,” as Justice successfully argued in the Texas case.
Finally, Justice even filed (unsuccessfully) a motion to compel the deposition testimony of the lieutenant governor of Texas. Can you imagine the outrage that would spill out of the White House if the House Committee had served a subpoena on Vice President Joe Biden seeking his testimony of what the White House knew about Operation Fast and Furious?
It’s clear, when one compares the Justice Department’s position on executive and deliberate process privilege in the Texas voter ID litigation with its position on the privilege in the congressional investigation of Operation Fast and Furious, that neither Eric Holder nor Barack Obama want the same rules applied to them that they would apply to the governor of Texas and members of the state legislature. They don’t believe there are any privileges that should apply to shield the state’s documents, and if there are, they should be “abrogated” by a court because of the “extraordinary” importance of upholding the requirements of the Voting Rights Act.
Surely finding out why a government agency engaged in behavior that allowed more than 2,000 weapons to illegally cross the border and end up in the hands of dangerous criminals, which led directly to the death of many individuals (including an American agent), is also extraordinarily important in upholding the rule of law. Shouldn’t the White House agree to abrogate any claim of executive privilege?
It is time for the Attorney General and the president to come clean and to provide both Congress and the American people with all of the information and documentation they have about Operation Fast and Furious, including who knew about it, who approved it, and why such a “felony stupid” operation was ever implemented.
Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and a former lawyer at the Justice Department.
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