Government & Constitution

Justice Dept. ordered to produce list of Fast and Furious documents covered by executive privilege

Justice Dept. ordered to produce list of Fast and Furious documents covered by executive privilege

An update on a little story that’s been chugging along in the background while the world burns: a federal judge has ordered the Justice Department to give the House Oversight Committee a list of the documents President Obama threw under a blanket of executive privilege to protect Attorney General Eric Holder from Operation Fast and Furious fallout.  The Associated Press reports:

In a court proceeding Wednesday, U.S. District Judge Amy Berman Jackson set an Oct. 1 deadline for producing the list to the House Oversight and Government Reform Committee.

The Justice Department says the documents should remain confidential and President Barack Obama has invoked executive privilege in an effort to protect them from public disclosure.

The House panel says the Justice Department documents might explain why the department took nearly a year to admit that federal agents had engaged in a controversial law enforcement tactic known as gun-walking.

A detailed description of those documents might also make Obama’s use of executive privilege look even more fishy than it already did, and it was already fishier than an entire season of “The Deadliest Catch.”  How do the details of a weird, out-of-control DOJ program – initiated by the Bureau of Alcohol, Tobacco, and Firearms, but pretty much every agency was involved by the time it got Border Patrol Agent Brian Terry killed – merit the protection of executive privilege?  We’re talking about a very large collection of documents here, too, not just a couple of things that might interfere with ongoing prosecutions or somehow jeopardize national security.

This decision – which, I gather, would unveil even more than the index of documents another judge ordered to be released in response to a Freedom of Information Act lawsuit by Judicial Watch – was not an unqualified win for House Oversight:

After Wednesday’s court proceeding, Justice Department spokeswoman Emily Pierce said that “we are pleased the judge recognized that executive privilege includes a deliberative process beyond presidential communications” — a point the department has been arguing in its dispute with Congress.

In court papers, the Justice Department has said that if the courts were to reject a confidentiality claim, Congress could have unfettered access to all information from the executive branch of government aside from presidential communications.

Such a development would be in contravention of the constitutional separation of powers and over two centuries of dealings between the legislative and executive branches, the department said.

The need for some confidentiality in the executive branch is particularly strong in the current case, which involves a congressional demand for information that would reveal the process by which the executive responds to congressional inquiries, the Obama administration added.

Son of a (Fast and Furious) gun, lookee there!  The constitutional separation of powers is back!  I thought we were never going to see it again.  I guess we’re still supposed to be cool with the imperial President rewriting laws on the fly, but deeply concerned that Congress might uncover too many details of “the process by which the executive responds to congressional inquiries.”  Or, you know, doesn’t respond to them.

The more delicate issue buried under all this “executive privilege” flapdoodle is that Eric Holder’s Justice Department straight-up lied to Congress, repeatedly, about Operation Fast and Furious.  That’s why we were treated to all those hearings in which Holder portrayed himself as an incompetent, disconnected manager who has no idea what various units of his department might be doing in Mexico with a few thousand American guns on any given day.  The whole Fast and Furious scandal was a dark comedy of officials scrambling to simultaneously explain how (a) they had no idea this massive operation was under way, and (b) it’s cool that highly-paid officials in the biggest, most powerful government in history didn’t know that this massive operation was under way.  How come nobody could hear the whistleblowers?  Don’t ask.

Congress is trying to get documents that were created after Feb. 4, 2011 — the day the Justice Department told Sen. Chuck Grassley that ATF “makes every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico.”

Grassley is the ranking Republican on the Senate Judiciary Committee. In a follow-up on May 2, 2011, the Justice Department told Grassley that “it remains our understanding that ATF’s Operation Fast and Furious did not knowingly permit straw buyers to take guns into Mexico.”

Three days later, a senior Justice Department official informed the committee that “there’s a there there” with respect to the congressional investigation.

On Dec. 2, 2011, the Justice Department withdrew the original Feb. 4 letter which denied that gun-walking had taken place.

I like to imagine them “withdrawing” this letter from Senator Grassley’s in-box using a string with a piece of moist chewing gum on the end.

House Oversight chairman Darrell Issa welcomed Judge Jackson’s order, and didn’t seem terribly concerned about the minor concession to the executive-privilege process: “Today a Federal judge ordered that the Department of Justice must submit by October 1 a privilege log of withheld documents related to Operation Fast and Furious.  I am grateful and pleased by that.  This Administration has been so intent on hiding the contents of these documents that it allowed Attorney General Holder to be held in contempt instead of just turning them over to Congress.  The privilege log will bring us closer to finding out why the Justice Department hid behind false denials in the wake of reckless conduct that contributed to the violent deaths of Border Patrol Agent Brian Terry and countless Mexican citizens.”

That’s a pretty explosive statement.  Not explosive enough to draw one second of coverage from any of the major “news” networks, of course, but NewsBusters says ABC News had a thing about monkeys stowing away on a cargo ship that sounds like it might have been fun.  Imagine the coverage that would be given to a Republican president’s stonewall cracking, revealing long-suppressed details of a scandal that killed people.  That’s how the media keeps stories alive – by reporting on interim developments, asking challenging questions, and making a big stink when the Administration refuses to answer their questions.  Leave those updates out, and any story can be finely aged into an obscure obsession with enough time.

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