Holder’s Fast and Furious Letter to Obama

Obama invokes controversial privilege as Department of Justice and Attorney General Eric Holder come under intense scrutiny for gun-running scandal.

Facing a contempt vote by the powerful House Oversight Committee, Attorney General Eric Holder asked President Barack Obama to shield the documents Congress is seeking under “executive privilege” in an 8 page letter formulated late Tuesday night ahead of the vote.

The President took no time in considering and approving.

Comparisons to Nixon were readily made, even by Holder himself. During the first three pages of the letter to the President, Holder uses Nixon’s argument to define “executive privilege”. Many noted that Nixon lost the case, the Court feeling that public interest trumped any claims to executive privilege in that particular situation. It doesn’t help that Nixon was using executive privilege to hide his involvement in the crisis mode management of the political fallout of Watergate.

There’s a big difference here. The Obama White House and  Holder Justice Department are arguing two unusual points. First, that the President may or may not be involved, but routinely it is mentioned that the argument here is to cover White House staff. Many believe this is outside the legal scope of executive privilege. Secondly, there’s nothing operational to the Fast and Furious program that the White House wants to seal from Congress and the public (they seriously mentioned media fall out on page 2 of the letter), but conversations and documents that deal with crisis mode management of the political fallout.

You’d have to be hyper-involved to realize that the documents Chairman Darrell Issa (CA-49) is seeking aren’t actual additional operational specifics about the deadly Fast and Furious program that left border agent Brian Terry murdered as well as what is estimated as ‘hundreds of Mexicans’. Instead he wants to know why the Committee was lied to, who was responsible for the mismanagement and what roles people in the White House and/or Department of Justice have played. Not one person has been identified or fired to date.

It’s significant noting that Holder admits wrongdoing in both the operation and the aftermath saying, “both the inappropriate tactics used in Fast and Furious and the inaccuracies concerning the use of those tactics in the letter that the Department sent to Senator Grassley…”

Issa is attempting to get questions answered to what is referred to as the “February 4 Letter” (PDF), a letter from Senator Chuck Grassley (R-IA) to the Department of Justice probing into process whereby Holder and his Department admittedly provided Congress with false and otherwise incomplete information.

In the letter, Holder puts heavy emphasis that this is a “separation of powers concern here because the Committee’s inquiry into Fast and Furious has sought information about ongoing criminal investigations and prosecutions.”

Holder is the first Attorney General to be found in contempt by the House Oversight Committee. The vote was 24-17 along party lines and now a resolution will make its way to the House floor where it too is expected to pass along party lines.

Although Democrats were equally caught off guard there was no shortage of defenses. New York Democrat Congresswoman Carolyn Maloney (NY-14) spent her time arguing that the Committee’s real role should be in finding ways to make the government more efficient. Note, the House Oversight Committee is the only House committee with subpoena powers. Democrats weren’t debating the Committee’s role until being so clearly caught off guard yesterday.

Powerline blog was in line with much of what legal experts were saying, that Holder is left just making a bad argument and this is bad politics for President Obama.

Earlier blogger “Allahpundit” of HotAir.com said that Issa would avert a vote and House Speaker John Boehner would avoid bringing it to the House floor. Reality is dictating otherwise.

Expect a Federal District Court to be the next significant battleground.

For the reasons set forth above, I have concluded that you may properly assert executive privilege over the documents at issue, and I respectfully request that you do so.

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