Grassley: Federal judge should overturn Obama’s Fast and Furious executive privilege claim

Matthew Boyle Investigative Reporter
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TAMPA, Fla. – Iowa Republican Sen. Chuck Grassley told The Daily Caller that if a federal judge doesn’t overturn President Barack Obama’s assertion of executive privilege over Operation Fast and Furious documents, it’d be the worst abuse of the presidential secrecy power in its history.

“Well, if he [a federal judge] doesn’t [overturn Obama’s executive privilege assertion], it’s going to be the most sweeping abuse of executive privilege in the history of executive privilege,” Grassley said in an interview Tuesday at the Republican National Convention.

The House of Representatives voted to hold Attorney General Eric Holder in criminal and civil contempt of Congress in June because of his failure to comply with a subpoena for Fast and Furious documents. As the resolutions to hold Holder in contempt were being considered by the House oversight committee – after more than a year of Obama administration stonewalling – Obama asserted executive privilege over the documents.

Since the contempt votes, Holder’s Department of Justice ordered the District of Columbia’s U.S. Attorney, Ron Machen, to not enforce the criminal contempt resolution. So, House Republicans are pursuing the civil contempt resolution through a lawsuit against the Obama administration.

The lawsuit seeks to have a federal judge invalidate Obama’s executive privilege assertion and force him to cough up the Fast and Furious documents.

Obama’s executive privilege assertion is flimsy at best. As House oversight committee chairman Darrell Issa has pointed out, it “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.”

Deliberative process privilege would be unjustified because, as Issa has said, 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.”

Top congressional Democrats and Obama administration officials – including the president himself – have admitted that “government misconduct” took place in Fast and Furious.

House Republicans officially filed their lawsuit in mid-August, but it’s unclear when the litigation will be resolved. Grassley told TheDC that he doesn’t “know how long it takes” for such a lawsuit to move.

In addition to the lawsuit, Grassley and Issa are expected to release a second report in a three-part series on Fast and Furious and the DOJ’s Inspector General is expected to release his report on the scandal on Sept. 10. “Now, obviously, when it comes out, we have to evaluate it and hopefully it comports with what we know,” Grassley told TheDC of the IG report.

As these reports are finalized, Holder is expected to be called back up to Capitol Hill for more hearings.

Grassley said he wants officials in the Obama administration held accountable for Fast and Furious, but he doesn’t expect that to happen until after the November presidential election.

“If we can pinpoint the people responsible for it, I intend to hold them accountable – do what we can to get them fired,” he said. “If you want to be cynical, we’re not going to get anything until after the election.”

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