In a letter obtained by The Daily Caller, House oversight committee Chairman Rep. Darrell Issa pressed President Barack Obama directly on his assertion of executive privilege over documents related to Operation Fast and Furious.
“[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.”
Issa revealed in the letter to Obama that Attorney General Eric Holder had requested the president assert the privilege in a letter last Tuesday evening — shortly after Holder, Issa and other congressional leaders involved in Fast and Furious met to try to come a resolution before last Wednesday’s contempt vote in Issa’s oversight committee. The president’s decision to assert the privilege came via a letter from Deputy Attorney General James Cole to Issa minutes before Issa began the proceedings against Holder.
The California congressman told Obama that Cole’s letter stating that Obama has “’asserted executive privilege over the relevant post-February 4, 2011 documents’ raised concerns that there was greater White House involvement in Operation Fast and Furious than previously thought.”
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.’”