Did DoJ approve “a different approach” to gunwalking in 2010?

posted at 9:15 am on February 2, 2012 by Ed Morrissey

Eric Holder goes back up the Hill today to tell Congress that he doesn’t have to share his e-mails with anyone, but that may be a little too late.  A new report from Rep. Darrell Issa and Senator Charles Grassley allege that Holder deputy Lanny Breuer gave the ATF a green light on a “different approach” to interdicting weapons going across the border in 2010, and then failed to follow up — at best — on Operation Fast and Furious:

The memo, sent to Republican members of the Oversight Committee, was based upon interviews, documents and emails involving key players of the operation run by the Bureau of Alcohol, Tobacco, Firearms and Explosives. The operation allowed some 2,000 weapons cross the border into Mexico and into the hands of cartel members. …

The memo claims there was coordination between the Justice Department in Washington and the ATF in the early stages of the operation.

Emails released show that Kenneth Melson, former Acting Director of the ATF contacted Assistant Attorney General Lanny Breuer and told him that his organization wanted to take a “different approach” to seizing guns going to Mexico.

Breuer responded that it was a “terrific idea” and the Department assigned a prosecutor from its Criminal Division to work with the ATF in early 2010.

Republicans say attorney Joe Cooley attended key briefings on the program and should have alerted the Justice Department to what was going on. The memo also alleges that there was a lack of management by both the ATF and Justice Department with the use of federal wiretaps.

According to the memo, “Both Justice Department and ATF leaders in Washington, D.C. claimed they were unaware of the gunwalking that occurred during Fast and Furious, yet both could have and should have reviewed the Wiretap Affidavits.”

So what exactly was “a terrific idea”?  Until now, Breuer and Holder have both claimed that they didn’t know that the ATF was doing anything differently than their traditional interdiction strategies. This “terrific idea” seems to be closely related to Operation Fast and Furious, and the only innovation in that effort was letting the guns go across the border without coordinating with the Mexican government — the very issue Congress seeks to expose.

You know what would clear this up?  Access to Holder’s e-mails and other work products, but Holder will claim today that those are somehow privileged — an interesting assertion.  Holder won’t quite claim executive privilege but instead will try to parallel it, claiming in his prepared testimony (via Jim Geraghty):

Prior administrations have recognized that robust internal communications would be chilled, and the Executive Branch’s ability to respond to oversight requests thereby impeded, if our internal communications concerning our responses to congressional oversight were disclosed to Congress. … The appropriate functioning of the separation of powers requires that Executive Branch officials have the ability to communicate confidentially as they discuss how to respond to inquiries from Congress. …

Such candid internal deliberations are necessary to preserve the independence, integrity, and effectiveness of the Department’s law enforcement activities and would be chilled by disclosure to Congress of such materials. Just as we have worked to accommodate the Committee’s legitimate oversight needs, I trust that the Committee will equally recognize the Executive Branch’s constitutional interests and will work with us to avoid further conflict on this matter.

Executive privilege does not flow downward from the President to the entire executive branch, however.  The President has (a very limited) recourse to executive privilege not because he has confidential consultations, but because the people elected him separately to run the executive branch.  It does not extend to even others in the White House unless the communications sought involve the President directly.  It certainly doesn’t apply to leadership of agencies within the executive branch, who are explicitly accountable to Congress and whose agencies exist under a blend of both executive and legislative prerogatives.  The only way executive privilege could be claimed would be to assert that the President was involved in these discussions, which I assume would be the last thing Obama wants this year.

Eric Holder has no executive privilege, and the Senate might have to start considering how to remove him if he refuses to cooperate with legitimate oversight into an operation that has killed hundreds of Mexicans and a Border Patrol agent with weapons the ATF deliberately allowed to fall into the hands of the drug cartels.

Geraghty’s conclusion sums it up well:

Thus, the administration that took military action in Libya without any authorization from force from Congress, that appointed czars with policymaking authority without Congressional confirmation, and that made ‘recess’ appointments while Congress was not in recess is invoking executive privilege to cover how the Department of Justice reacted when Congress began asking about a gun-trafficking operation that got U.S. law enforcement officers murdered by Mexican drug cartels.

All from a president who railed against a runaway imperial presidency when George W. Bush sat in the office he currently occupies.

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