Executive Branch

Obama Asserts Executive Privilege in Congressional Probe of Fast and Furious

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President Barack
Obama. Rena Schild

Updated: President Obama is asserting executive privilege to withhold documents in a House committee probe of Operation Fast and Furious.

The Justice Department revealed the privilege claim Wednesday in a letter to the House Oversight and Government Reform Committee, report CNN, the Associated Press and the Washington Post. Despite the privilege claim, U.S. Rep. Darrell Issa, R-Calif., went forward Wednesday with a planned committee vote on whether to hold Attorney General Eric Holder in contempt for failure to turn over the documents. The Oversight Committee approved the contempt charge; the matter goes next to the House floor.

Issa’s committee is probing Justice Department conduct in the gun running probe known as Fast and Furious. The Bureau of Alcohol, Tobacco, Firearms and Explosives launched Fast and Furious to track guns carried across the border in hopes of tracing them to drug cartels. But the agency lost track of 1,000 weapons, including two firearms used in a shootout that killed a border patrol agent.

Holder had urged Obama to assert the privilege in a letter (PDF) dispatched Tuesday evening. Holder wrote that sharing the internal documents could have “significant, damaging consequences” and would “inhibit candor” of future executive branch deliberations.

The Justice Department has turned over 7,600 pages of Fast and Furious documents, but Issa wants additional information about department deliberations that occurred after questions were raised about the probe, the Post says. Republicans want to know why the department issued and then withdrew a February 2011 letter to Congress saying officials had only recently learned of the Fast and Furious program.

Holder wrote in his letter to Obama that a congressional committee cannot defeat a claim of executive privilege unless the requested documents are “demonstrably critical” to responsible fulfillment of legitimate committee legislative functions. In this case, he said, the standard was not met.

Forcing the executive branch to turn over documents about its response to oversight inquiries “would create a detrimental dynamic that is quite similar to what would occur in litigation if lawyers had to disclose to adversaries their deliberations about the case,” Holder said. “As the Supreme Court recognized in establishing the attorney work product doctrine, ‘it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.’ ”

Updated on June 21 to include information on the committee contempt vote.

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