White House insists executive privilege right, despite Obama’s own admission of apparent ‘serious mistake’

Matthew Boyle Investigative Reporter
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The White House insisted Tuesday morning that President Barack Obama has the right to shield Department of Justice documents related to Operation Fast and Furious from congressional investigators, despite the president’s past comments.

White House spokesman Eric Schultz responded to a letter House oversight committee chairman Rep. Darrell Issa sent to President Obama.

In his letter to Obama, Issa laid out how Obama’s assertion of executive privilege to keep withholding Fast and Furious documents from Congress “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.”

That’s because, as Issa points out, the president can’t legally assert privilege over “deliberative documents between and among department personnel who lack the requisite ‘operational proximity’ to the president” because, according to the Congressional Research Service, courts have determined that privilege over deliberative documents “disappears altogether when there is any reason to believe government misconduct has occurred.”

In his response to media on Tuesday morning, Schultz confirmed that Obama is asserting privilege based on deliberative process documents.

“Our position is consistent with Executive Branch legal precedent for the past three decades spanning Administrations of both parties, and dating back to President Reagan’s Department of Justice,” Schultz said. “The Courts have routinely considered deliberative process privilege claims and affirmed the right of the executive branch to invoke the privilege even when White House documents are not involved.”

Schultz’ admission that Obama’s assertion of executive privilege is based on deliberative materials poses a complication for the president, who has in the past admitted “a serious mistake” appeared to be made in the execution of Fast and Furious, implying “government misconduct.”

In a March 22, 2011, interview with Univision, Obama said that “there may be a situation here in which a serious mistake was made and if that’s the case then we’ll find out and we’ll hold somebody accountable.”

Attorney General Eric Holder has also publicly implied “government misconduct” that took place in Fast and Furious. “To the extent we find that mistakes occurred, people will be held accountable,” Holder has said of the scandal.

Schultz did not respond to a request for comment about the relationship between the president’s admission of government misconduct and his ability to shield the documents using executive privilege.

Schultz also attacked Issa and other congressional Republicans for claiming there were gun control motivations behind Fast and Furious.

“The Congressman’s analysis has as much merit as his absurd contention that Operation Fast and Furious was created in order to promote gun control,” Schultz said.

When TheDC pressed Schultz on whether he was aware the administration actually used Fast and Furious to implement a gun control regulation – the multiple sales long-gun reporting rule in border states – he would not answer.

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