President Obama may have to clear a high bar in order to lock down Fast and Furious documents from the prying eyes of congressional investigators.

After the White House asserted executive privilege over potentially thousands of documents pertaining to the botched anti-gunrunning operation, critics of the move pointed out that the federal appeals court in the nation’s capital has taken a skeptical view toward privilege claims in the past…

“The privilege,” the court wrote, “disappears altogether when there is any reason to believe government misconduct occurred.”

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The OCDETF designation enabled Fast and Furious investigators to use wiretaps. This is highly unusual in ATF-run cases — almost all federal wiretapping is done in investigations led by the FBI or the DEA. As noted above, wiretapping requires Main Justice approval. But that’s not all: As I’ve previously outlined, federal wiretap law mandates that the application to the court describe the investigative tactics that have been used in the investigation and explain why those tactics cannot achieve the investigation’s objectives without wiretapping. If the Fast and Furious wiretap applications complied with federal law, they must have described the gunwalking tactic. These applications cannot be submitted to a federal judge until they have been approved by Main Justice; they are submitted to the Department’s Office of Enforcement Operations, which screens them very carefully.

There is little doubt that the wiretap applications would show that senior DOJ officials were aware of the gunwalking tactic long before Agent Terry was gunned down on December 14, 2010. But that’s not the half of it. Bet your bottom dollar that gunwalking was discussed in the consideration of whether to make Fast and Furious an OCDETF case in the first place. OCDETF investigations, moreover, are carefully monitored by the Justice Department throughout, to ensure that the extraordinary flow of funding continues to be worthwhile. I’m wagering that senior DOJ officials — which is to say, Obama-administration political appointees — knew about the gunwalking for close to a year before Agent Terry’s death.

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Republicans want to know whether top officials at Justice or the White House knew about the gun-walking program, which, although they haven’t turned up evidence of this, would be a reasonable line of inquiry. But casting doubt on their motives are the documents they are demanding: only those since February 2011 — two months after Terry was killed and the program was shut down.

Rep. Gerald Connolly (D-Va.) accused Issa of setting up a “kangaroo court” to convict Holder. “If this were a genuine attempt to make sure that the Terry family had closure, we’d have an open investigation,” he said, and call witnesses involved in the program over the past six years. But, Democrats complained, Issa never sought public testimony from people in the Phoenix ATF office who ran the operation, or from the former head of the ATF, who told committee investigators that he never informed Justice Department higher-ups of the operation because he didn’t know about it…

The indignation would sound more genuine if Republicans weren’t going after Holder over what has happened since Terry died.

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Along with conservative commentators like Rush Limbaugh, Issa suggested as late as April that Fast and Furious may have been part of a policy by the White House to flood the Mexican market with guns to foment violence, which would then put political pressure back on the US to curb its wide-open border gun bazaar and weaken Second Amendment rights…

“Could it be that what they really were thinking of was in fact to use this walking of guns in order to promote an assault weapons ban?” Rep. Issa said. “Many think so. And [the administration] hasn’t come up with an explanation that would cause any of us not to agree.”…

[W]hile the political lines around Fast and Furious are thus clearly drawn, allusions to Watergate-sized conspiracy theories do, at the very least, also help bolster Issa’s central point: If only to quell such theories, Americans deserve to know whether it was really a hapless bureaucratic blunder or whether administration officials lied about the extent of their involvement in what became a deadly scandal.

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Pity lead House Republican investigator Rep. Darrell Issa of California. It is his misfortune that he isn’t looking into matters about which the Obama administration can talk freely — namely, all its covert national-security programs.

If Justice Department documents that Issa’s committee seeks from Attorney General Eric Holder had been the subject of a top-secret meeting in the White House Situation Room, their contents already would have been splashed across the media. Issa could read the A1 New York Times story and be done with it.

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Via the Daily Caller.

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