One of the first major scandals of the Obama administration may not get resolved until after Barack Obama leaves office — at least, if Eric Holder has anything to say about it. Politico’s Josh Gerstein reported last night on an effort by the Attorney General to keep the issue of executive privilege and Congressional subpoenas from resolution, even after a federal judge ordered Holder and the Department of Justice to submit documents to the House Oversight Committee. If successful, it might push the appeals process so far out that Obama will leave office before Congress can exercise its oversight responsibilities properly:
Attorney General Eric Holder is again asking a federal court to delay the transfer of disputed documents relating to Operation Fast and Furious to a House committee.
In a new court filing Monday night, Justice Department lawyers asked U.S. District Court Judge Amy Berman Jackson not to require Holder to turn over any of the roughly 64,000 pages of documents to the House Oversight and Government Reform Committee until after her rulings can be appealed to the U.S. Court of Appeals for the D.C. Circuit.
“The Department respectfully submits that it would be preferable for the parties, this Court, and the D.C. Circuit — if an appeal were taken — to have any injunctive order await the conclusion of the district court litigation to allow for orderly and complete appellate proceedings,” DOJ lawyers wrote.
Jackson has previously denied DOJ permission to file an immediate appeal, although lawyers for Holder indicated in the new filing (posted here) that they may do so anyway. Any appeal is likely to take months and perhaps more than a year to resolve. If that process does not begin until Jackson rules definitively on the the executive privilege claim President Barack Obama has made for many of the documents, the timeline for the case being resolved could begin to approach the end of the Obama administration.
I’m certain that this outcome would break no hearts at the White House, but it’s ridiculous nonetheless. They have dragged out this process for more than three years — which is more than half of Barack Obama’s time in office.
Oversight and Darrell Issa began demanding documents shortly after Republicans took control of the House, and as early as June 2011 threatened contempt citations for Holder’s delaying tactics. Holder began releasing documentation but kept some away from the panel, claiming executive privilege — a claim which can only be asserted by the President, and then only under very limited circumstances. In the summer and fall of 2011, Issa issued a flurry of subpoenas for the Fast & Furious probe. By June 2012, with Holder still refusing to turn over the complete set of documents or even a detailed accounting of them, the House held Holder in contempt while the White House made a claim of executive privilege.
That was 27 months ago. Holder and the DoJ are clearly trying to subvert the rule of law and the constitutionally-provided powers of oversight through extensive delays. Holder and Obama are waiting for a Congress that will drop the whole investigation into the motives and decisions that led the ATF to send thousands of weapons into the hands of drug cartels, and which contributed to a number of murders, including that of Border Patrol agent Brian Terry. The court needs to put a stop to this and restore the checks and balances needed to keep the executive branch from abusing its power.
“Washington should be responsible stewards of the American taxpayers’ money. While all too often that is not the case, this is a good government bill to streamline agency activity at DOJ—increasing effectiveness while decreasing cost. The ATF is a largely duplicative, scandal ridden agency that lacks a clear mission. It is plagued by backlogs, funding gaps, hiring challenges and a lack of leadership. For decades it has been branded by high profile failures. There is also significant overlap with other agencies. At a time when we are approaching $18 trillion in debt, waste and redundancy within our federal agencies must be addressed. Without a doubt, we can fulfill the role of the ATF more efficiently,” Sensenbrenner said in a statement about the ATF Elimination Act.
According to Sensenbrenner there are two main goals for the legislation, “to eliminate and reduce duplicative functions and waste to the maximum extent possible, and to report to Congress with a detailed plan on how the transition will take place.”
If the Obama administration wants to obstruct legitimate Congressional oversight into executive-branch abuses, then the proper response would be to eliminate those agencies at which the White House won’t provide the proper transparency. Given that this administration tried to use the ATF for its own political purposes, this move makes sense even from a strictly hygienic perspective.