How can the president assert executive privilege if there was no White House involvement? How can the president exert executive privilege over documents he's supposedly never seen? —Sen. Charles Grassley, R-Iowa
President Barack Obama exerted executive privilege in the Fast and Furious gunrunning probe, giving Attorney General Eric Holder some breathing room, but perhaps pulling himself into the controversy at the same time.
According to an Oversight and Government Reform Committee report, Fast and Furious began in 2009 when the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) began allows strawpurchasers to buy guns in the U.S. and transfer them across the border. The goal of the project was purportedly to identify members of trafficking networks and trace smuggling routes in and out of Mexico.
However, when the December 2010 death of Brian Terry, a member of a special tactical border squad, was connected with guns traced back to Fast and Furious, whistleblowers began to come forward with details about the nearly 2,000 guns that were allowed to cross into Mexico untracked.
Since then, Congressional committees have held a number of hearings with Attorney General Eric Holder, seeking more details about the program.
The executive privilege action is Obama's first since taking office, and came in response to a letter sent by Holder. The letter stated that the president could properly assert executive privilege in the current situation and requested that he do so. The action was taken minutes before Holder's contempt hearing on Capitol Hill was due to begin.
"I write now to inform you that the President has asserted executive privilege over the relevant post-February 4, 2011, documents," Deputy Attorney General James Cole said in a letter to House Oversight and Government Reform Committee Chairman Rep. Darrell Issa, R-Calif. "We regret that we have arrived at this point, after the many steps we have taken to address the Committee's concerns and to accommodate the Committee's legitimate oversight interests regarding Operation Fast and Furious."
Executive privilege allows Obama to withhold documents revealing internal communications and decision-making of the executive branch from Congress if the president believes they should remain confidential. A Congressional subpoena cannot override the claim, but the privilege can be challenged and overturned in courts.
Members of the House Oversight and Governmental Reform Committee are seeking documents regarding the operation, including details about what government officials knew about the program and when they knew about it. Specifically, committee members want documents showing why the Department of Justice withdrew its inaccurate February 2011 letter saying top officials at the DOJ had only recently learned about Fast and Furious.
In a June 5 letter, Issa revealed that six 2010 wiretap applications from Fast and Furious give immense detail about the tactics used in the operation, and that the applications included a memorandum from Assistant Attorney General Lanny A. Breuer authorizing the wiretap applications on behalf of the attorney general.
On Feb. 2, 2012, Holder testified before Congress that "there is no indication that Mr. Breuer or my former deputy were aware of the tactics that were employed in this matter until everybody I think became aware of them, which is like January or February of last year. The information — I am not at this point aware that any of those tactics were contained in any of the wiretap applications."
"We now know that all of these statements are not accurate," Issa said in a letter to Holder. "Having seen the wiretap applications, we now know that the information coming from the department has been misleading. That must stop."
Agent Brian Terry's mother took to Facebook after a recent hearing at which Holder testified, slamming the attorney general in a message.
"Mr. Holder. How come you can never say my sons name. You never have. All i ever hear you say is "i didn't find out or i cant say' Im actually tired of hearing your double talk in answering questions. What a joke you are. You know my son was a real AMERICAN, a WARRIOR, and a HERO, who was also protecting COWARD POLITICANS like you."
The Terry family formally protested the executive privilege action Wednesday, saying, "Attorney General Eric Holder's refusal to fully disclose the documents associated with Operation Fast and Furious and President Obama's assertion of executive privilege serve to compound the tragedy. It denies the Terry family and the American people the truth."
Representatives in Congress criticized the decision to exercise executive privilege Wednesday, saying it called into question Holder's assertion that no high-ranking government officials knew about Fast and Furious.
"The assertion of executive privilege raises monumental questions," Sen. Charles Grassley, R-Iowa, said. "How can the president assert executive privilege if there was no White House involvement? How can the president exert executive privilege over documents he's supposedly never seen? Is something very big being hidden to go to this extreme?"
"One of the big issue issues that we've been dealing with is: who knew about Fast and Furious?" Rep. Dan Burton, R-Ind., asked. "Why would the president claim executive privilege unless there was something very, very important that he thought should not be made known to his committee and to the public?"
"The White House decision to invoke executive privilege implies that White House officials were either involved in the Fast and Furious operation or the cover-up that followed," House Speaker John Boehner's spokesman Brendan Buck said. "The administration has always insisted that wasn't the case. Were they lying, or are they now bending the law to hide the truth?"
Romney Press Secretary Andrea Saul said the decision to invoke executive privilege was another broken promise in regards to Obama's pledge to run the most open and transparent administration in history.
Democrats argued that the administration had been forced into asserting executive privilege by the committee's "unreasonable insistence on pressing forward with contempt" proceedings and that Operation Wide Receiver, a George Bush-era gun program should also be investigated. They also pressed for new gun laws in the wake of Terry's murder and said that the "cowboys" at the ATF should be investigated.
White House communications director Dan Pfeiffer said Republicans are playing politics by moving forward with the investigation of Fast and Furious.
Rep. Trey Gowdy, R-S.C., said that everyone involved in the Obama-era Operation Fast and Furious and the Bush-era Operation Wide Receiver should testify before Congress.
"Bring the information before the committee, because gun walking is wrong no matter what administration does it," Gowdy said. "That does not mitigate this attorney general's responsibility to comply with a subpoena from Congress ... Respect for the rule of law must mean something irrespective of the vicissitudes of political cycles."
In 2007, former Senator Obama criticized the Bush administration for exercising executive privilege at the time.
"You know, there's been a tendency on the part of this administration to, to try to hide behind executive privilege every time there's something a little shaky that's taking place," Obama said. "I think, you know, the administration would be best served by coming clean on this."