House Response to Holder Motion in Fast and Furious Contempt Suit Compares Obama’s Ex. Privilege To That of Nixon

It is expected that Federal Judge Amy Berman Jackson will soon issue a decision on Summary Judgment motions made by the House Oversight Committee and by Eric Holder in the suit brought by the Committee after the House voted to hold Holder in contempt for failure to respond to a subpoena for documents related to Operation Fast and Furious. Last year the Judge ruled against a motion to dismiss, brought by Holder and also rejected his request to appeal her decision. A ruling by the judge will be rendered as Obama and his administration are confronted by a number of challenges including the creation of a Select Committee to investigate Benghazi, the demand from the Senate Intelligence Committee that its torture report be released, increasing demands that Obama release the 28-page chapter of the Congressional Joint Inquiry into 9/11 which reportedly deals with the role of Saudi Arabia in funding 9/11, the court decision that the DOJ memo justifying drone assassinations be released and the order by Federal Judge Zloch in Florida that the FBI hand over to him for in camera review 92,000 documents in the Tampa FBI office pursuant to its investigation of a Saudi cell in Sarasota, Florida which is believed to have provided support for the 9/11 hijackers, documents never turned over to the 9/11 Commission or the Congressional Joint Inquiry.

The Fast and Furious case involves documents sought by the Committee dated or created after February 4, 2011. That is the date on which a letter was written to Senator Grassley claiming that no guns were allowed to walk to drug cartels in Mexico. The letter was later retracted by the DOJ when the Committee discovered evidence that the letter was not true. The Committee then requested documents which would allow it to investigate whether the letter constituted obstruction. On June 20, 2012, Deputy Attorney General James M. Cole wrote a letter to Darrell Issa, Chairman of the Oversight Committee claiming that the President had asserted executive privilege as the grounds for not turning over the subpoenaed documents. No document from the President himself has ever been presented.

At issue is whether executive privilege applies to Eric Holder and the DOJ deliberations, which are being investigated as possibly constituting obstruction of justice. Holder claims that he is not asserting the presidential communications privilege, that is, he claims Obama was not involved. Release of the documents may or may not confirm that. The only other type of executive privilege is what is called common law deliberative process privilege. But not all of the documents fall under such a privilege. So Holder has asserted a Constitutional deliberative process privilege for which there is no precedent. The Committee makes the argument in response to Holder that “there is no basis in the Constitution to do what the Attorney General proposes.” Moreover, the Committee argues that if the judge supports Holder’s argument, it would be the President, not the courts, that would determine whether Congress would receive any information. Holder actually argues that the “President’s assertion of Executive Privilege is dispositive,” and that any “evaluation” by the Court of the Committee’s need for the Post-February 4 subset of documents is “unwarranted” because the President already has performed that function. Thus, according to the committee: “The only authority for this ‘executive-always-wins-and-Congress-always loses’ proposal is the DOJ itself. Moreover, as the Committee states this argument “would make the President both the asserter and the arbiter of the privilege—a neat trick, but one which the courts rightfully have rejected.”

The Committed further argues that “Plainly, the Attorney General is not the President and occupies no unique place in our constitutional structure; he is only the head of a Congressionally-created Executive Branch agency.” Moreover, the privilege he advances would extend the scope of the presidential communications privilege beyond the President’s immediate advisors to officials further downstream which was rejected in Nixon I (presidential communications privilege must not be “expansively construed”) and in Nixon v. Sirica (Constitution and separation of powers concepts “do not mandate a decision which blindly applies the same privilege to the entire executive branch.”

On this base the Committee argues: “The Attorney General’s confidentiality claims here are virtually identical to those of then-President Nixon.”

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