<<<<< Issa wrote this to B. Obama:
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.
“Dear Mr. President:
On June 19, 2012, shortly after leaving a
meeting in the U.S. Capitol, Attorney General Eric Holder wrote to request that
you assert executive privilege with respect to Operation Fast and Furious
documents he is withholding from this Committee. The next day, Deputy Attorney
General James Cole notified me in a letter that you had invoked executive
privilege. The Committee received both letters minutes before the scheduled
start of a vote to recommend that the full House hold the Attorney General in
contempt of Congress for refusing to comply with its subpoena.
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.
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.
As you know, the Committee voted to
recommend that the full House hold Attorney General Holder in contempt of
Congress for his continued refusal to produce relevant documents in the
investigation of Operation Fast and Furious. Last week’s proceeding would not
have occurred had the Attorney General actually produced the subpoenaed
documents he said he could provide. The House of Representatives is scheduled
to vote on the contempt resolution this week. I remain hopeful that the
Attorney General will produce the specified documents so that we can work
towards resolving this matter short of a contempt citation. Furthermore, I am
hopeful that, consistent with assertions of executive privilege by previous
Administrations, you will define the universe of documents over which you
asserted executive privilege and provide the Committee with the legal
justification from the Justice Department’s Office of Legal Counsel (OLC).
Background
U.S. Border Patrol Agent Brian Terry was
killed in a firefight with a group of armed Mexican bandits who preyed on
illegal immigrants in a canyon west of Rio Rico, Arizona on December 14, 2010.
Two guns traced to Operation Fast and Furious were found at the murder scene.
The Terry family appeared before the Committee on June 15, 2011, to ask for
answers about the program that put guns in the hands of the men who killed
their son and brother. Having been stonewalled for months by the Attorney
General and his senior staff, the Committee issued a subpoena for documents
that would provide the Terry family the answers they seek. The subpoena was
served on October 12, 2011.
Internally, over the course of the next
eight months, the Justice Department identified 140,000 pages of documents and
communications responsive to the Committee’s subpoena. Yet, the Department
handed over only 7,600 of these pages. Through a series of accommodations and
in recognition of certain Executive Branch and law enforcement prerogatives,
the Committee prioritized key documents the Department needed to produce to
avoid contempt proceedings. These key documents would help the Committee
understand how and why the Justice Department moved from denying whistleblower
allegations to understanding they were true; the identities of officials who
attempted to retaliate against whistleblowers; the reactions of senior
Department officials when confronted with evidence of gunwalking during Fast
and Furious, including whether they were surprised or already aware of the use
of this reckless tactic, and; whether senior Department officials are being
held to the same standard as lower-level employees who have been blamed for
Fast and Furious by their politically-appointed bosses in Washington.
I met with Attorney General Holder on June
19, 2012, to attempt to resolve this matter in advance of the Committee’s
scheduled contempt vote. We were joined by Ranking Member Elijah Cummings and
Senators Patrick Leahy and Charles Grassley, respectively the Chairman and
Ranking Member of the Senate Committee on the Judiciary. The Department had
previously identified a small subset of documents created after February 4,
2011 — the date of its letter containing the false claim that no gunwalking had
occurred — that it would make available to the Committee. The Justice
Department described this small subset as a “fair compilation” of the full
universe of post-February 4th documents responsive to the subpoena.
During the June 19th meeting, the Attorney
General stated he wanted to “buy peace.” He indicated a willingness to produce
the “fair compilation” of post-February 4th documents. 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.
As Chairman of the primary investigative
Committee of the U.S. House of Representatives, I considered the Attorney
General’s conditions unacceptable, as would have my predecessors from both
sides of the aisle. I simply requested that the Department produce the “fair
compilation” in advance of the contempt vote, with the understanding that I
would postpone the vote to allow the Committee to review the documents.
The short meeting in the Capitol lasted
about twenty minutes. The Attorney General left the meeting and, shortly
thereafter, sent an eight-page letter containing more than forty citations
requesting that you assert executive privilege. The following morning, the
Deputy Attorney General informed me that you had taken the extraordinary step
of asserting the privilege that is designed to protect presidential decision
making.
In his letter, the Attorney General stated
that releasing the documents covered by the subpoena, some of which he offered
to the Committee hours earlier, would have “significant, damaging
consequences.”[1] It remains unclear how — in a matter of hours — the Attorney
General moved from offering those documents in exchange for canceling the
contempt vote and ending the congressional investigation to claiming that they
are covered by executive privilege and that releasing them — which the Attorney
General was prepared to do hours earlier — would now result in “significant,
damaging consequences.”
The Scope of Executive Privilege
Deputy Attorney General Cole’s
representation that “the President has asserted executive privilege over the
relevant post-February 4, 2011, documents” raised concerns that there was
greater White House involvement in Operation Fast and Furious than previously
thought.[2] The courts have never considered executive privilege to extend to
internal Executive Branch deliberative documents.
Absent from the Attorney General’s
eight-page letter were the controlling authorities from the U.S. Court of
Appeals for the District of Columbia. As the court held in the seminal case of
In re Sealed Case (Espy):
The privilege should not extend to staff
outside the White House in executive branch agencies. Instead, the privilege
should apply only to communications authored or solicited and received by those
members of an immediate White House adviser’s staff who have broad and
significant responsibility for investigating and formulating the advice to be
given the President on the particular matter to which the communications relate.[3]
The D.C. Circuit established the
“operational proximity test” to determine which communications are subject to
privilege. Espy made clear that it is “operational proximity to the President
that matters in determining whether the president’s confidentiality interest is
implicated.”[4]
In addition, even if the presidential
communications privilege did apply to some of these subpoenaed documents, Espy
made clear that “the presidential communications privilege is, at all times, a
qualified one,” and that a showing of need could overcome it.[5] Such a need —
indeed a compelling one — plainly exists in this case.
The Justice Department has steadfastly maintained that the
documents sought by the Committee do not implicate the White House whatsoever.
If true, they are at best deliberative documents between and among Department
personnel who lack the requisite “operational proximity” to the President. As
such, they cannot be withheld pursuant to the constitutionally-based executive
privilege. Courts distinguish between the presidential communications privilege
and the deliberative process privilege. Both, the Espy court observed, are
executive privileges designed to protect the confidentiality of Executive
Branch decision-making. The deliberative-process privilege, however, which
applies to executive branch officials generally, is a common law privilege that
requires a lower threshold of need to be overcome, and “disappears altogether
when there is any reason to believe government misconduct has occurred.”[6]
The Committee must assume that the White House Counsel’s Office is fully aware of the prevailing authorities of Espy, discussed above, and Judicial Watch v. Dep’t of Justice.[7] If the invocation of executive privilege was proper, it calls into question a number of public statements about the involvement of the White House made by you, your staff, and the Attorney General.
The Committee must assume that the White House Counsel’s Office is fully aware of the prevailing authorities of Espy, discussed above, and Judicial Watch v. Dep’t of Justice.[7] If the invocation of executive privilege was proper, it calls into question a number of public statements about the involvement of the White House made by you, your staff, and the Attorney General.
Finally, the Attorney General’s letter to
you cited numerous authorities from prior Administrations of both parties. It
is important to note that the OLC opinions provided as authorities to justify
expansive views of executive privilege are inconsistent with existing case law.
Remarks about White House Involvement in
Fast and Furious
For the past sixteen months, Senator
Grassley and I have been investigating Operation Fast and Furious. In response
to a question about the operation during an interview with Univision on March
22, 2011, you stated that, “Well first of all, I did not authorize it. Eric
Holder, the Attorney General, did not authorize it.”[8] You also stated that
you were “absolutely not” informed about Operation Fast and Furious.[9] Later
in the interview, you said that “there may be a situation here in which a
serious mistake was made and if that’s the case then we’ll find out and we’ll
hold somebody accountable.”[10]
From the early stages of the investigation,
the White House has maintained that no White House personnel knew anything
about Operation Fast and Furious. Your assertion of executive privilege,
however, renews questions about White House involvement.
White House Press Secretary Jay Carney
emphasized your denial that you knew about Fast and Furious. Mr. Carney stated,
“I can tell you that, as the president has already said, he did not know about
or authorize this operation.”[11] A few weeks later, Mr. Carney reiterated the
point, stating, “I think he made clear . . . during the Mexican state visit and
the press conference he had then that he found out about this through news
reports. And he takes it very seriously.”[12]
In an October 6, 2011 news conference, you
maintained that Attorney General Holder “indicated that he was not aware of what
was happening in Fast and Furious.”[13] Regarding your own awareness, you went
on to state, “Certainly I was not. And I think both he and I would have been
very unhappy if somebody had suggested that guns were allowed to pass through
that could have been prevented by the United States of America.”[14]
On March 28, 2012, Senator Grassley and I
wrote to Kathryn Ruemmler, who serves as your Counsel, to request that she
grant our numerous requests to interview Kevin O’Reilly, a member of the White
House National Security Staff. We needed Mr. O’Reilly’s testimony to ascertain
the extent of White House involvement in Operation Fast and Furious. In her
response, Ms. Ruemmler advised us that the e-mail communications between Mr.
O’Reilly and William Newell, the Special Agent in Charge of ATF’s Phoenix Field
Division, did not reveal “the existence of any of the inappropriate
investigative tactics at issue in your inquiry, let alone any decision to allow
guns to ‘walk.’”[15] She further emphasized “the absence of any evidence that
suggests that Mr. O’Reilly had any involvement in ‘Operation Fast and Furious’
or was aware of the existence of any inappropriate investigative tactics.”[16]
Your assertion of executive privilege renews concerns about these denials.
Earlier this month, when House Judiciary
Committee Chairman Lamar Smith asked the Attorney General when the Justice
Department first informed the White House about the questionable tactics used
in Fast and Furious, he responded, “I don’t know.”[17] He informed Chairman
Smith that his focus was on “dealing with the problems associated with Fast and
Furious,” and that he was “not awfully concerned about what the knowledge was
in the White House.”[18]
Attorney General Holder has assured the
public that he takes this matter very seriously, stating that “to the extent we
find that mistakes occurred, people will be held accountable.”[19] Yet, he has
described the Committee’s vote as “an election-year tactic.”[20] Nothing could
be further from the truth. This statement not only betrays a total lack of
understanding of our investigation, it exemplifies the stonewalling we have
consistently faced in attempting to work with the Justice Department. If the
Attorney General had produced the responsive documents more than eight months
ago when they were due, or at any time since then, we would not be where we are
today.
Moving Forward
At the heart of the congressional
investigation into Operation Fast and Furious are disastrous consequences: a
murdered Border Patrol Agent, his grieving family, countless deaths in Mexico,
and the souring effect on our relationship with Mexico. Members of the
Committee from both sides of the aisle agree that the Terry family deserves
answers. So, too, do Agent Terry’s brothers-in-arms in the border patrol, the
Mexican government, and the American people. Unfortunately, your assertion of
executive privilege raises more questions than it answers. The Attorney
General’s conditional offer of a “fair compilation” of a subset of documents
covered by the subpoena, and your assertion of executive privilege, in no way
substitute for the fact that the Justice Department is still grossly deficient
in its compliance with the Committee’s subpoena. By the Department’s own
admission, it has withheld more than 130,000 pages of responsive documents.
I still believe that a settlement,
rendering further contempt of Congress proceedings unnecessary, is in the best
interests of the Justice Department, Congress, and those most directly affected
by Operation Fast and Furious. In light of the settled law that confines the
constitutionally-based executive privilege to high-level White House
communications, I urge you to reconsider the decision to withhold documents
that would allow Congress to complete its investigation.
In the meantime, so that the Committee and
the public can better understand your role, and the role of your most senior
advisors, in connection with Operation Fast and Furious, please clarify the
question raised by your assertion of executive privilege: To what extent were
you or your most senior advisors involved in Operation Fast and Furious and the
fallout from it, including the false February 4, 2011 letter provided by the
Attorney General to the Committee? Please also identify any communications,
meetings, and teleconferences between the White House and the Justice
Department between February 4, 2011 and June 18, 2012, the day before the
Attorney General requested that you assert executive privilege.
I appreciate your prompt attention to this
important matter.
Sincerely,
Darrell Issa
Chairman
cc: The Honorable Elijah E. Cummings, Ranking Member
Committee on Oversight and Government Reform
U.S. House of Representatives
Committee on Oversight and Government Reform
U.S. House of Representatives
Senator Charles E. Grassley, Ranking Member
Committee on the Judiciary
U.S. Senate
Committee on the Judiciary
U.S. Senate
Senator Patrick Leahy, Chairman
Committee on the Judiciary
U.S. Senate
Committee on the Judiciary
U.S. Senate
The Honorable Kathryn Ruemmler, Counsel to
the President”
