Issa to Holder over Fast and Furious: Want a deal? Make a move

Matthew Boyle Investigative Reporter
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House oversight committee chairman Rep. Darrell Issa fired off a letter to Attorney General Eric Holder on Wednesday saying that if he wants to negotiate on subpoenaed Operation Fast and Furious documents, Holder must make the first move.

Holder and his deputy attorney general, James Cole, have now publicly expressed their desire to meet with Issa, Speaker of the House John Boehner and Sen. Chuck Grassley to resolve the subpoena Holder has thus far failed to comply with.

“If the Department of Justice submits a serious proposal for how it intends to alter its refusal to produce critical documents subpoenaed by the committee, I am ready and willing to meet to discuss your proposal,” Issa wrote Wednesday.

Holder has failed to comply with all 22 categories of the congressional subpoena over Fast and Furious that Issa served him last October. With 13 of the categories, Holder has provided no documents whatsoever. Holder remains far from compliant with the other nine subpoena categories.

Now, since Issa has set a date for contempt of Congress proceedings to begin against Holder — with a public blessing from Boehner — the attorney general and his top deputy are asking to meet.

“I want to make it very clear that I am offering to sit down, by myself, offering to sit down with the speaker, with the chairman, with whomever, to try to work our way through this in an attempt to avoid a constitutional crisis and come up with ways — creative ways, perhaps — in which we can make this material available,” Holder told Grassley during his Tuesday appearance before the Senate Judiciary Committee. “But I’ve got to have a willing partner. I’ve extended my hand, and I’m waiting to hear back.” (RELATED: Cornyn ‘not impressed’ with Holder’s intelligence)

Issa pointed out how his committee “has twice significantly narrowed” the subpoena’s requirements already. While Issa said he is willing to talk, he made clear that, Holder ultimately needs to cooperate to avoid the contempt of Congress. Issa said he wants documents from after the Feb. 4, 2011, letter that the DOJ sent to Grassley about Fast and Furious denying gunwalking.

The DOJ has since withdrawn that letter because its denial of gunwalking was false. Holder has refused to overturn such documents because he argues they relate to internal “deliberative process” discussions, but Issa says they’re fair game because the DOJ provided false information to Congress in what he argues were efforts to mislead his investigators.

“If the department is prepared to engage in discussions based upon a stated willingness to drop its opposition to providing material from after February 4, 2011, that may reflect internal deliberations, I ask that you indicate such intention,” Issa wrote to Holder. “If the department has another proposal for altering its objections to providing subpoenaed materials, I ask that you promptly submit that proposal for consideration as a basis for productive discussions.”

Issa also reminded Holder that he can’t legally withhold those deliberative documents because he hasn’t cited any privilege to do so — including executive privilege. Issa told Holder about how both Republican and Democratic administrations have provided such documents to Congress in years past.

“I remind you that while courts have found that the president of the United States can exert executive privilege over materials and conversations that play a role in advising the president, department officials — including the attorney general — enjoy no such privilege,” Issa wrote. “Putting this aside for the moment, the department has already acknowledged that exceptions to protecting internal deliberations can be justified.”

“The department made such an exception when it chose to make materials available to Congress, related to the issuance of a false denial of reckless conduct in Operation Fast and Furious,” Issa continued. “During the previous administration, the department made similar materials available to Congress. These materials also reflected internal deliberations made available in response to a congressional investigation of the firing of several U.S. attorneys. If the department wishes to settle this dispute short of contempt, the committee has offered it a clear path to do so without the need to disclose sensitive documents created during Operations Fast and Furious.”

Holder spokeswoman Tracy Schmaler has not responded to TheDC’s request for comment on this development.

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