Executive Privilege In ‘Fast And Furious’ Probe Should Come As No Surprise
The Obama administration ratcheted up the fight over the controversial “Fast and Furious” program, asserting executive privilege to withhold documents demanded by Rep. Darrell Issa (R-Calif).
In a letter to Issa, the Justice Department asserted the privilege applies to documents that explain how the department first learned there were problems with the investigation spearheaded under the Bush administration. On its face that sounds like a reasonable assertion of the privilege for starters, and it hardly encompasses every document requested by Issa. Any internal investigations and communications on the program should have at least some protection in order to promote an environment where internal concerns can be aired and investigated and remedial action taken without fear of exposure for political gain. But the move will undoubtedly anger congressional Republicans who have jumped on the bungled gun-smuggling operation as a way to crucify Attorney General Eric Holder who, as the Department of Justice’s top prosecutor, has re-invigorated DOJ’s Department of Civil Rights division much to the dismay of the right.
There’s a saying in the law that privilege is a shield and not a sword, meaning that its protections are just that–protections rather than a tool to move a party on the offense or to shield evidence that damages their claims or defense. The scope of the documents Issa requested go well beyond the reasonableness of any oversight exercise and demonstrate the political nature of his inquiry, as does the contempt vote scheduled for later today. In any other circumstance asserting a claim of privilege over some of those documents would be a non-story and a non-event. Indeed, it is a routine practice in any contested matter. But because this is Issa and Congressional Republicans, it is making news. There’s also a difference between endorsing the actions of DOJ under the program and demanding congressional Republicans refrain from abusing the oversight process, another nuance likely to be missed in the coverage of this story.
There is probably plenty to be critical of DOJ in ‘Fast and Furious’ and congressional hearings are usually the first step in finding some answers. But politicizing the oversight process does absolutely nothing to promote transparency and accountability. And let’s be honest, transparency and accountability were never Issa’s strongest characteristics.
Photo from ryanjreilly via flickr.