Friday, June 22, 2012
Few principles are more important to our constitutional
scheme than the separation of powers, which is precisely why President Obama's
bogus assertion of executive privilege to thwart Congress' investigation into
Fast and Furious is so inexcusable.
Executive privilege is an important safeguard against
congressional overreach and to preserve the separation of powers. The inherent
right of the executive to protect highly sensitive information has long been
recognized, and the privilege was judicially established during the Watergate
era.
As such, Congress should not go on fishing expeditions
against a president to score political points. But neither should a president
assert the privilege to obstruct a legitimate investigation when there appears
to be no colorable claim to the privilege. This trivializes the privilege and
the separation of powers it is designed to protect.
Legal experts agree that the privilege applies to
communications to which the president or an adviser acting on his behalf is a
party. But they disagree about whether it applies to internal communications
within executive agencies when neither the president nor his representative
were involved in those communications.
As the communications for which the privilege is being
asserted here were reportedly internal Justice Department communications, many
view the privilege claim dubiously.
But even when the privilege is applicable, it is
qualified and can be overcome when Congress demonstrates it has a substantial
need for the information it seeks. In this case, Congress is seeking relevant
information from the Justice Department, which it has been trying to obtain for
more than a year.
At every turn, Attorney General Eric Holder has
stonewalled and obstructed congressional investigators. He is withholding
thousands of pertinent documents, using an internal investigation as cover. It
was because of Holder's persistent refusal to cooperate that Rep. Darrell Issa,
R-Calif., threatened to hold him in contempt.
At the last minute, President Obama, who had claimed from
the outset that he had no prior knowledge of the operation, asserted the
privilege on Holder's behalf, as only the president can invoke this important
privilege.
The attorney general has a unique responsibility as a
special steward to see that the laws are fairly and equally administered, and
the Justice Department is the last federal agency that should be involved in a
cover-up to obstruct the legal process. Both Holder and Obama are betraying
that trust by the specious assertion of privilege in this case.
Fast and Furious was a reckless operation from the
beginning, which must not be repeated. Congress has an interest in
investigating all the facts both to prevent similar debacles in the future and
to ensure that responsible officials are held accountable.
Obama and Holder have assured Congress and the American people that they will get to the bottom of the facts and that the culpable parties will be held accountable. But so far they have protected, and sometimes rewarded, their political appointees high up on the food chain and punished the whistleblowers who brought this into the open.
Fast and Furious was a harebrained scheme involving the
sale of guns to straw purchasers with the hope that they would lead investigators
to drug cartels. But because ATF agents were forbidden to track the movement of
the weapons sold and Mexican authorities were kept in the dark about the
operation, the only way it could have worked is for authorities to have
discovered the weapons at crime scenes after crimes had been committed and
people were injured or killed.
Holder has been caught twice deceiving Congress, and he
claimed both instances were inadvertent. His excuse for misrepresenting when
he'd learned about the operation by some 10 months was that he hadn't read
emails sent to him informing him of it.
Congress has a substantial need to know and a duty to
pursue answers to: why Holder misled Congress; why the Department of Justice
lied to Congress in a Feb. 4, 2011, letter in which they denied knowledge of
gunwalking when internal documents proved they knew; why Fast and Furious was
conceived in the first place; why ATF didn't allow its agents to track the
weapons once they were sold; why no one at Main Justice has been punished; who
ultimately authorized the operation; why Mexican authorities were kept in the
dark about an operation that resulted in the injury and death of hundreds of
Mexican citizens; why DOJ officials approved wiretap applications if they
didn't read them thoroughly enough to discover that gunwalking was involved in
the operation; and whether and when Obama had any knowledge of the operation.
What possible legitimate basis -- national security or
otherwise -- does Obama have to deprive Congress of the requested information?
This is an arrogant and lawless cover-up that appears calculated to buy this
administration time until after the November election. Republicans should not
back down. Though it acts like it, this defiant administration is not above the
law.
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