Tomorrow is not going to be a good day for the SCoaMF.
June 25, 2012
The President The White House Washington, D.C. 20500
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).
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.
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.
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."
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]
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.
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.
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.
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.
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.
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.
Sincerely,
Darrell Issa Chairman
cc: The Honorable Elijah E. Cummings, Ranking Member Committee on Oversight and Government Reform U.S. House of Representatives
Senator Charles E. Grassley, Ranking Member Committee on the Judiciary U.S. Senate
Senator Patrick Leahy, Chairman Committee on the Judiciary U.S. Senate
The Honorable Kathryn Ruemmler, Counsel to the President
[1] Letter from U.S. Att'y Gen. Eric H. Holder, Jr. to the President (June 19, 2012), at 2. [2] Letter from Deputy U.S. Att'y Gen. James Cole to Chairman Issa (June 20, 2012). [3] In re Sealed Case (Espy), 121 F.3d 729 (D.C. Cir. 1997). [4] Id. [5] Id. [6] Congressional
Research Service, Presidential Claims of Executive Privilege: History,
Law, Practice, and Recent Developments (Aug. 21, 2008). [7] 365
F.3d 1108 (D.C. Cir. 2004) (holding that presidential communications
privilege only applied to documents "solicited and received" by the
President or his immediate advisers). [8] Interview by Jorge Ramos, Univision, with President Barack Obama, San Salvador, El Salvador (Mar. 22, 2011). [9] Id. [10] Id. [11] The White House, Office of the Press Secretary, Press Briefing by Press Secretary Jay Carney (June 17, 2011). [12] The White House, Office of the Press Secretary, Press Briefing by Press Secretary Jay Carney (July 5, 2011). [13] Richard
Serrano, Obama Defends Attorney General: Holder Faces Scrutiny over
ATF's Fast and Furious Gun Operation, Charlotte Observer, Oct. 7, 2011.
[14] Id. [15] Letter
from Hon. Kathryn Ruemmler, Counsel to the President, to Hon. Darrell
E. Issa, Chairman, H. Comm. on Oversight & Gov't Reform, & Sen.
Charles E. Grassley, Ranking Member, S. Comm. on the Judiciary (Apr. 5,
2012). [16] Id. [17] Oversight
of the U.S. Dep't of Justice: Hearing Before the H. Comm. on the
Judiciary, 112th Cong. (June 7, 2012) (Test. of U.S. Att'y Gen. Eric H.
Holder, Jr.). [18] Id. [19] Mike
Levine, Guns Groups To Sue over New Obama Regulations, DOJ Vows To
"Vigorously Oppose," FoxNews.com, Aug. 3, 2011, http://www.foxnews.com/politics/2011/08/03/guns-groups-to-sue-over-new-obama-regulations-doj-vows-to-vigorously-oppose/#ixzz1yRMujaLY. [20]
Congress Contempt Charge for U.S. Attorney General Holder, BBC News,
June 21, 2012, http://www.bbc.co.uk/news/world-us-canada-18528798.
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