By Ben Barrack
The House Oversight Committee, led by Chairman Rep. Jason Chaffetz (R-UT) is re-opening its investigation of Operation Fast and Furious. The operation – which allowed straw purchasers to buy guns from gun stores and transport them to Mexican drug cartels – can be traced to the murders of two federal U.S. agents (and countless other innocent people; that number continues to rise). Border Patrol agent Brian Terry was murdered with a gun from Fast and Furious in 2010, as was ICE Agent Jaime Zapata in 2011.
After President Trump tweeted that his predecessor – Barack Obama – wiretapped Trump Tower, there was a common refrain from pundits. Trump called for Congress to investigate. Pundits, however, rightly asserted that as President, Trump could release the evidence himself; they are right.
Along those lines, on the day that then Attorney General Eric Holder was found in contempt of Congress by the Oversight Committee, Obama asserted executive privilege as a reason not to turn over subpoenaed documents relating to Operation Fast and Furious.
As President, Trump should release the documents Obama withheld via executive privilege.
On June 25, 2012, then Oversight Committee Chairman Rep. Darrell Issa (R-CA) sent a letter to Obama; here is the opening paragraph (emphasis mine):
On June 19, 2012, shortly after leaving a meeting in the U.S. Capitol, Attorney General Eric Holder wrote to request that you assert executive privilege with respect to Operation Fast and Furious documents he is withholding from this Committee. The next day, Deputy Attorney General James Cole notified me in a letter that you had invoked executive privilege. The Committee received both letters minutes before the scheduled start of a vote to recommend that the full House hold the Attorney General in contempt of Congress for refusing to comply with its subpoena. Courts have consistently held that the assertion of the constitutionally-based executive privilege — the only privilege that ever can justify the withholding of documents from a congressional committee by the Executive Branch — is only applicable with respect to documents and communications that implicate the confidentiality of the President’s decisionmaking process, defined as those documents and communications to and from the President and his most senior advisors. Even then, it is a qualified privilege that is overcome by a showing of the committee’s need for the documents. The letters from Messrs. Holder and Cole cited no case law to the contrary. Accordingly, your privilege assertion means one of two things. 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. To date, the White House has steadfastly maintained that it has not had any role in advising the Department with respect to the congressional investigation.
Several months earlier, Holder was called to appear in front of the House Judiciary Committee. At the hearing, Issa openly accused Holder of acting like Nixon’s former Attorney General John Mitchell. The reason had to do with Holder’s refusal to comply with a Congressional subpoena to release the documents that were ultimately withheld under executive privilege, just before the Oversight Committee recommended that the full House find Holder in contempt, which it did. Here is the audio of that exchange on December 8, 2011:
Congress later did something it had never done in its history, via POLITICO:
The House has voted to hold Attorney General Eric Holder in contempt of Congress over his failure to turn over documents related to the Fast and Furious scandal, the first time Congress has taken such a dramatic move against a sitting Cabinet official…
…Obama asserted executive privilege on some of the documents Issa is seeking shortly before the Oversight and Government voted on party lines to approve a contempt resolution against Holder.
It is clear that Obama had no standing to assert executive privilege in this case. He essentially did it to protect his Attorney General and quite possibly, himself.
Here is then Oversight Committee member Rep. Trey Gowdy (R-SC) in 2012, explaining why Obama’s assertion of executive privilege in the case of Fast and Furious does not hold water:
Audio in case the above video is removed:
This week, Chaffetz re-opened the Fast and Furious investigation. Appearing before the House Committee was Michael Horowitz, Inspector General for the Department of Justice, and ATF Acting Director Thomas Brandon. However, two agents who were asked to appear but didn’t, were subpoenaed by Chaffetz during his initial exchange with Brandon. ATF Agent William Temple and Associate Director Ronald Turk had chosen not to appear. Brandon – their boss – attempted to deny that he had anything to do with their absence but said he agreed with it.
Essentially, Brandon admitted to ordering them not to appear while saying he didn’t:
Terry and Zapata were both murdered more than six years ago and their families still do not have answers. Not one government official has faced any real consequences for this government-sanctioned operation, which was clearly designed to push gun control.
Trump has the authority and ability to make public the documents Obama withheld by unlawfully asserting executive privilege.
Any real investigation of Fast and Furious demands that he do so.