Issa to Obama: Either you’re involved in Fast and Furious or your executive privilege claim is unjustified

Matthew Boyle | Investigative Reporter

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.’”

The letter also shed new light on details of the Issa-Holder meeting last week. During that meeting, Issa told Obama that Holder said he wanted to “buy peace.”

“He indicated a willingness to produce the ‘fair compilation’ of post-February 4th documents,” Issa wrote to the president. “He told me that he would provide the ‘fair compilation’ of documents on three conditions: (1) that I permanently cancel the contempt vote; (2) that I agree the department was in full compliance with the committee’s subpoenas, and; (3) that I accept the ‘fair compilation,’ sight unseen.”

Issa said he refused Holder’s offer because he considered his “conditions unacceptable,” and said his “predecessors from both sides of the aisle” would have done the same. “I simply requested that the department produce the ‘fair compilation’ in advance of the contempt vote, with the understanding that I would postpone the vote to allow the committee to review the documents,” Issa wrote before detailing that is something Holder did not do.

Issa added that while Holder has provided about 7,600 pages worth of Fast and Furious documents to his committee, that’s hardly close to the 140,000 pages of documents he’s produced internally within his Department of Justice.

“As you know, the committee voted to recommend that the full House hold Attorney General Holder in contempt of Congress for his continued refusal to produce relevant documents in the investigation of Operation Fast and Furious,” Issa wrote. “Last week’s proceeding would not have occurred had the attorney general actually produced the subpoenaed documents he said he could provide.”

The full U.S. House of Representatives is set to vote on Thursday to hold Holder in contempt of Congress. He would be the first attorney general to be held in contempt in the history of the United States.

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