Issa challenges Obama on executive privilege regarding Holder

Rachel Rose Hartman
The Ticket

Rep. Darrell Issa on Monday accused President Barack Obama of using executive privilege to obstruct the House Oversight and Government Reform Committee's investigation of the failed Fast and Furious gun-walking operation.

In a letter to Obama, Issa, the GOP chairman of the committee, questioned the motivation behind Obama's decision to intervene on behalf of Attorney General Eric Holder moments before a committee vote to hold him in contempt of Congress:

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.

Through his committee investigation, Issa has led the congressional charge to uncover what the Justice Department and the White House knew about the failed operation, which oversaw the sale of firearms to Mexican drug cartels for the purpose of tracking weapons, although most of those weapons went missing. The investigation is looking specifically at the circumstances surrounding a Feb. 4, 2011, letter, since rescinded, that the Justice Department issued regarding the operation.

The Oversight Committee voted last Wednesday to hold Holder in contempt for the Justice Department's failure to turn over documents subpoenaed in the committee's investigation. Obama used executive privilege to assert the Justice Department's right to withhold the documents.

In Monday's letter, Issa pressed the president, in light of his use of executive privilege, to clarify his role and that of his senior advisers in the Fast and Furious fallout.

The office of House Speaker John Boehner jumped to Issa's defense on Tuesday, writing in an alert bulletin that precedent suggests the White House was in the wrong. "When presidents have asserted it [executive privilege] over other executive branch documents and communications, either courts have ruled those claims to be invalid and ordered them overturned OR the White House has relented and provided Congress with the documents that were requested," spokesmen Brendan Buck and Kevin Smith wrote.

"In legal decisions on the scope of executive privilege during the Bush and Clinton administrations, judges consistently ruled that executive privilege does NOT extend to Cabinet level officials or their staffs."

White House spokesman Eric Schultz in a statement Tuesday defended the president's right to exert executive privilege, citing past precedent in both parties. "The Courts have routinely considered deliberative process privilege claims and affirmed the right of the executive branch to invoke the privilege even when White House documents are not involved," Schultz said.

"The Congressman's analysis has as much merit as his absurd contention that Operation Fast and Furious was created in order to promote gun control," he added of Issa's attacks, noting a theory some gun rights advocates are promoting but which the White House and others vehemently deny.

Ohio State University law professor Peter Shane is one of several experts to publicly defend the White House's decision to intervene. Shane wrote the following in an op-ed for CNN last week:

The executive branch has articulated a strong and highly specific reason for withholding the documents at issue: Forced disclosure to Congress of internal deliberations concerning how best to interact with Congress would undermine the executive's capacity to function as a co-equal branch. It would undermine the prospects for future candid deliberations about interactions with the other institutions of government.

The full House of Representatives is planning to vote on whether to hold Holder in contempt this Thursday, according to Republican leadership staff.

Olivier Knox contributed to this report.