WASHINGTON | Wed Jun 20, 2012 1:04pm EDT
WASHINGTON (Reuters) -
The Obama
administration on Wednesday defied the Republican-led U.S. House of
Representatives, invoking a claim of executive privilege as it refused to turn
over some documents related to a Mexican gun-running operation.
The move prompted the House Oversight and Government Operations Committee to
go ahead with plans to vote on charging U.S. Attorney General Eric Holder with
contempt of Congress.
The exchange set up yet another constitutional confrontation - the Supreme
Court battle over health care and immigration being the others - between
Republicans and the White House.
The "Fast and Furious" operation was meant to help federal law enforcement
agents follow the flow of guns from Arizona into Mexico, where they were thought
to fall into the hands of violent Mexican drug cartels.
But U.S. agents lost track of many of those weapons, which later were
involved in crimes, including the shooting death of U.S. Border Patrol agent
Brian Terry. Fast and Furious ran from late 2009 until early 2011.
Word of the botched operation prompted Congress to investigate the Obama
administration's handling of it.
Historically, Congress has had considerable difficulty enforcing contempt
citations and has ultimately relied on negotiated settlements following
protracted litigation to get the information it has sought.
The Democratic president and congressional Republicans have battled since
January, 2011, over everything from budget and tax policy to healthcare,
immigration and keeping basic government services running.
Tensions between President Barack Obama and Republicans in Congress are
expected to only worsen as the November 6 presidential and congressional
elections come closer.
More broadly, the dispute is one of dozens over the past half century between
the Congress and the White House, pitting Congress's investigative authority
against the president's privilege to protect internal communications.
An
administration official noted that President George W. Bush asserted executive
privilege six times while President Bill Clinton asserted it 14 times to protect
documents. 
Many of the struggles have wound up in the federal courts. Others have led to
negotiated agreements.
'ALL SHOW'
One of the problems Congress faces in these situations is the unwillingness
of the Department of Justice to let its prosecutors enforce contempt citations
against the executive branch, forcing Congress itself to bring suit in the
courts on its own.
"This is all show," said former House General Counsel Stanley Brand. "There's
no way to enforce these subpoenas. I know the press likes to say, 'Contempt.
Contempt.' The fact is that in the last 35 years, no Department of Justice will
prosecute an executive branch official under the contempt statute,
period."
He noted that when a Democratic Congress tried to pursue contempt charges
against Bush Administration, the House had to file a civil law suit that "that
took 2-plus years of litigation and they settled it. The chest beating about
contempt is silly, because everyone knows it's not going to get
enforced."
Holder has argued that over the past few months the Justice Department has
largely cooperated with Congress by turning over a substantial number of
documents to the Republican-led House Oversight and Government Reform
Committee.
But committee Chairman Darrell Issa has countered that the Obama
administration has been slow to respond to a committee subpoena and has withheld
important documents.
"I write now to inform you that the president has asserted executive
privilege over relevant ... documents," Deputy Attorney General James Cole wrote
to the committee.
Executive privilege allows the White House to argue that some private
communications between the president and members of his administration cannot be
divulged to Congress. (in other words, that's how you cover your tracks or prevent critical evidence from being used against you)
Holder, in a letter to Obama, set out familiar legal arguments in support of
the executive privilege claim.
"I am very concerned," he wrote, "that the
compelled production to Congress of internal Executive Branch documents
generated in the course of the deliberative process ... would have significant
damaging consequences" that would "inhibit the candor" of White House
deliberations now and in the future.
Issa responded by saying, "This untimely assertion by the Justice Department
falls short of any reason to delay today's proceedings."
If the House panel votes to charge Holder with contempt, it would then be up
to the full House to decide whether to bring that charge against the nation's
top law enforcement officer.
The process could take months or even years of court battles and further
poison the political atmosphere in a presidential election year.
For months, the committee and the Justice Department have been in
negotiations over documents related to federal law enforcement's handling of
Fast and Furious.
In his letter, Cole stated, "The Department has substantially complied with
the outstanding subpoena." He said the documents being withheld "pertain to
sensitive law enforcement activities, including ongoing criminal investigations
and prosecutions" or were "generally not appropriate for disclosure."
But Michael Steel, a spokesman for House Speaker John Boehner said, "Until
now, everyone believed that the decisions regarding ‘Fast and Furious' were
confined to the Department of Justice." He added, "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.
told the Republican Congress to “Go Home.” They argued that, “LITTLE or no good will come out of Capitol Hill for the remainder of the year. No tax cuts of any significance. No tax reform. No eliminations of Cabinet-level departments. Probably not even the termination of a single government program...