Constitutional Crisis or Political Scandal

Round and Round She Goes...


"How can the President invoke a privilege to protect documents he and the White House are supposed to have had nothing to do with?"

Holder's Many Privileges
Obama invokes the arguments of the Bush Justice Department.
WSJ Editorial, June 21, 2012

The Attorney General is supposed to protect a President from legal and political snares, a part of his job description that Eric Holder seems to have missed. He's now succeeded in drawing President Obama into a brawl with Congress by invoking "executive privilege" to withhold documents.

For weeks, Mr. Holder has resisted Congress's subpoena for documents investigating the botched drug-war operation Fast and Furious. But he expressly stopped short of claiming executive privilege, a power invoked only 24 times since the Reagan era that typically protects communications directly with the President or his senior aides. Mr. Holder instead claimed "deliberative privilege" within a Cabinet Department, a vague and much weaker claim that neither courts nor Congress have honored.

But suddenly on Wednesday, facing the threat of a criminal contempt vote in the House, Mr. Holder asked the President to invoke executive privilege after all. This is no small claim, and it raises a few new questions. Such as:

Did White House officials know and approve Fast and Furious before it went awry, and did they advise the Justice Department on how to respond to Congress's investigation into the operation's failure?

How can the President invoke a privilege to protect documents he and the White House are supposed to have had nothing to do with?

And what is so damaging or embarrassing in those documents that Mr. Obama is now willing to invest his own political capital to protect it from disclosure—at least until after the election?

Keep in mind that this uproar began over an obscure 2009 operation of the Bureau of Alcohol, Tobacco and Firearms (ATF) to let some 2,000 illegal weapons get into the hands of a Mexican drug cartel in an effort to track the guns to other traffickers and kingpins. In December 2010, Border Patrol Agent Brian Terry was killed during a gunfight, and two of the operation's illegal weapons were linked to the crime.

Congress decided to investigate, and in a February 4, 2011 letter to Congress, the Justice Department flatly denied that the operation existed. Ten months later it admitted that wasn't true and retracted the letter.

Since that modified, limited mea culpa, Mr. Holder has acknowledged that the program was fatally flawed and said he was the one who ended it. But rather than cooperate fully with the investigation, Mr. Holder's department began an epic stonewall to block Congressional attempts to find out what really transpired.

Among the facts worth pursuing are wiretap applications leaked to the House Oversight Committee that indicate senior Justice Department officials knew about the program when it was originally denied. In March 2011, former Acting ATF Director Kenneth Melson sent an email suggesting the Department should recant its denial based on the wiretap documents. Also curious is that Justice has given at least 80,000 documents to the Department's Inspector General for the internal investigation but only some 7,600 to Congress.

These columns have long defended the ability of executive branch officials to advise Presidents freely, and to protect that advice from Congressional trawling operations. But Congress also has every right to investigate a policy failure, especially one that cost an American law enforcement agent his life.

In this case, Congress has been seeking internal emails and documents not about advice to the President but between Justice officials to see if they misled Congress. Mr. Holder has been around the Beltway long enough to know that these kinds of communications aren't typically protected by executive privilege, and that Congress eventually gets its way.

One of the ironies of Mr. Holder's claim is that, in his letter to Mr. Obama requesting executive privilege, he cites Bush Administration arguments during the battle over the dismissal of several U.S. Attorneys. Readers may recall how Democrats, including a Senator named Obama, denounced the "tendency" of the Bush Administration "to hide behind executive privilege."

Yet compared to Mr. Holder, Bush Attorney General Alberto Gonzales was a model of candor and his department complied with nearly every document request. The Bush White House also turned over piles of documents, and Deputy Chief of Staff Karl Rove and White House counsel Harriet Miers eventually both gave interviews to House investigators. You can find them on Democratic Congressman John Conyers's website. The Reagan Justice Department also bent to Congress when Democrats sought documents while probing the EPA in the 1980s.

These document fights are invariably settled politically, and we hope this one is too. A committee voted 23-17 Wednesday to hold Mr. Holder in contempt, and if the entire House follows, the matter will be referred to a U.S. Attorney who works for the AG, who will no doubt tell him not to prosecute. Meanwhile, the American people can reach their own conclusions about Mr. Holder's credibility. His serial privilege claims make him—and now the President who is coming to his rescue—very hard to believe.

A version of this article appeared June 21, 2012, on page A16 in the U.S. edition of The Wall Street Journal, with the headline: Holder's Many Privileges.