In case readers didn’t already realize it … it’s on. The Daily Caller has a letter sent by House Oversight Chair Darrell Issa to President Barack Obama challenging the assertion of executive privilege in the investigation of Operation Fast and Furious. In the letter, Issa tells Obama that the assertion means one of two things: either the highest levels of the White House were involved in the effort to mislead Congress on OF&F, or Obama is deliberately obstructing the investigation:
“[Y]our privilege assertion means one of two things,” Issa wrote to the president in a letter dated June 25. “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.”
Issa said Obama’s assertion of executive privilege “raised the question” about the veracity of how the “White House has steadfastly maintained that it has not had any role in advising the department with respect to the congressional investigation.”
Obama’s assertion of executive privilege cited the “deliberative process” clause, but Issa rejects that as inapplicable under the circumstances:
Issa laid out that this is because the “Justice Department has steadfastly maintained that the documents sought by the committee do not implicate the White House whatsoever.”
“If true, they are at best deliberative documents between and among department personnel who lack the requisite ‘operational proximity’ to the president,” as legal precedent Issa cites requires. “As such, they cannot be withheld pursuant to the constitutionally-based executive privilege.”
Issa further breaks down how, “[c]ourts distinguish between the presidential communications privilege and the deliberative process privilege.”
“Both … are executive privileges designed to protect the confidentiality of executive branch decision-making,” Issa wrote. “The deliberative-process privilege, however, which applies to executive branch officials generally, is a common law privilege that requires a lower threshold of need to be overcome, and ‘disappears altogether when there is any reason to believe government misconduct has occurred.’”
Misconduct occurred on two levels. Issa’s reference is to the false information submitted by DoJ officials in Congressional testimony, which is the specific subject of the subpoenas on which the contempt charge is based. However, the overall investigation into OF&F also probes official misconduct in deliberately allowing thousands of weapons to be carried over the border with no way to track them, which violates regulations at the ATF — which is why ATF insiders blew the whistle on the operation in the first place. Either way, Issa is entirely correct under US v Espy that deliberative process executive privilege does not survive in these circumstances.
The letter goes on to explain why Issa didn’t cut a deal with Attorney General Eric Holder. Holder demanded that Issa “permanently” shelve the contempt charge and state that Holder had complied entirely with the subpoenas, in exchange for accepting a selective document dump, sight unseen. Small wonder the meeting didn’t last long, and Holder had to run to Obama for an assertion of executive privilege immediately afterward.
If the White House wasn’t involved in OF&F or the cover-up, then Holder should have just coughed up the materials. For that matter, Holder and the White House should have just fired the people involved in the first place and offered a “mistakes were made” mea minima culpa, which would have solved all of their political problems more than a year ago. This would be old and barely relevant news had Obama and Holder done so. The more they fight to keep those records secret — and especially when they offer ridiculous “deals” like the one Issa describes — the more it becomes clear that Obama really does have something to hide.
Update: The Hill also reports on Issa’s letter.