This item has been updated.
In a letter to President Obama, House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) wrote that the White House’s decision to withhold documents requested in the investigation “means one of two things.”
“Either you or your most senior advisors were involved in managing Operation Fast & Furious and the fallout from it ... or, you are asserting a Presidential power that you know to be unjustified solely for the purpose of further obstructing a congressional investigation,” Issa wrote. “To date, the White House has steadfastly maintained that it has not had any role in advising the Department with respect to the congressional investigation. The surprising assertion of executive privilege raised the question of whether that is still the case.”
Issa said that federal courts have previously ruled that executive privilege assertions should apply only to White House staffers and not to Executive Branch officials working outside the West Wing.
In his letter, Issa held out hope that Holder will comply with congressional requests “so that we can work towards resolving this matter short of a contempt citation.” He added that he also hopes Obama “will define the universe of documents over which you asserted executive privilege and provide the Committee with the legal justification.”
For roughly 18 months, Issa has investigated the fallout from Fast and Furious, the botched gun-running project managed by the Phoenix division of the Bureau of Alcohol, Tobacco, Firearms and Explosives between 2009 and 2011. Last week the oversight committee voted to hold Holder in contempt of Congress after he refused to turn over internal documents related to how the department planned to respond to the investigation.
Absent any resolution, House Republican leaders say they plan to hold a full House vote on the matter Thursday — the same day that the U.S. Supreme Court is expected to rule on the constitutionality of the 2010 health-care reform law.
On Monday, White House Press Secretary Jay Carney told reporters that “All of the documents under executive privilege date are after the Feb 4th date where — beyond which these documents are simply kind of internal deliberative documents that every administration should be able to keep private.” Carney added that the White House remains open to resolving the issue ahead of any contempt vote.
In a letter, Holder last week urged Obama to invoke executive privilege, writing that sharing the documents with Congress would have “damaging consequences” because it would “inhibit the candor” of internal administration deliberations and “significantly impair the Executive Branch's ability to respond independently and effectively to congressional oversight.”
If the House votes to hold Holder in contempt, the matter would be referred to U.S. Attorney for the District of Columbia Ronald C. Machen Jr., who would determine whether to press criminal charges. Machen was nominated to the post by President Obama in 2009 and, as a Justice Department official, ultimately reports to Holder.
But the Justice Department previously has declined to press charges against Executive Branch officials held in contempt of Congress, based on a legal analysis prepared during the Reagan administration. In May 1984, then-Assistant Attorney General Theodore B. Olson wrote that U.S. attorneys are not required to refer congressional contempt charges to a grand jury or prosecute an Executive Branch official “who carries out the President’s instruction to invoke the President’s claim of executive privilege before a committee.” (See the full document below.)
In July 2007 and again in February 2008, Attorney General Michael Mukasey cited the Olson analysis in letters to House Democratic leaders, informing them that DOJ would decline to press charges against White House Chief of Staff Joshua Bolten and White House Counsel Harriet E. Miers, who were held in contempt after failing to appear before the House Judiciary Committee.
Staff writer Sari Horwitz contributed to this report.
TED OLSON’S 1984 MEMO ON PROSECUTING CONTEMPT OF CONGRESS CHARGES:
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