Government Misconduct Should Nullify Executive Privacy Privileges Over Fast and Furious Docs

Published on September 1, 2012

Since the contempt votes passed in the House, Holder’s Department of Justice ordered the District of Columbia’s U.S. Attorney, Ron Machen, to not enforce the criminal contempt resolution. So, House Republicans are pursuing the civil contempt resolution through a lawsuit against the Obama administration.

The lawsuit seeks to have a federal judge invalidate Obama’s executive privilege assertion and force him to cough up the Fast and Furious documents.
Obama’s executive privilege assertion is flimsy at best. As House oversight committee chairman Darrell Issa has pointed out, it “means one of two things”: “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.”

Deliberative process privilege would be unjustified because, as Issa has said, the president can’t legally assert privilege over “deliberative documents between and among department personnel who lack the requisite ‘operational proximity’ to the president” because, according to the Congressional Research Service, courts have determined that privilege over deliberative documents “disappears altogether when there is any reason to believe government misconduct has occurred.