Issa: Obama’s privilege claim in ‘Fast and Furious’ suggests complicity

The chairman of a House committee that recommended a contempt citation against Attorney General Eric H. Holder Jr. in the Fast and Furious scandal said Tuesday that President Obama’s assertion of executive privilege means the White House is either covering up its role in the botched operation or is obstructing a congressional probe.

“To date, the White House has steadfastly maintained that it has not had any role in advising the [Justice] Department with respect to the congressional investigation,” Rep. Darrell E. Issa, California Republican, said in a toughly-worded seven-page letter to Mr. Obama.

“The surprising assertion of executive privilege raised the question of whether that is still the case,” he said.

Mr. Issa, chairman of the House Oversight and Government Reform Committee, also challenged the validity of the privilege claim, saying courts have “consistently held” that executive privilege applies only to documents and communications that involve the president’s decision-making process.

Accordingly, he said, the assertion can only mean that Mr. Obama “or your most senior advisers” were involved in managing the Fast and Furious operation “and the fallout from it,” or the president was acting “solely for the purpose of further obstruction a congressional investigation.”

The committee voted 23-17 last week along party lines to recommend to the full House that Mr. Holder be held in contempt of Congress - an unprecedented move against a sitting attorney general - for refusing to cooperate fully with the probe. The executive privilege assertion came only shortly before the committee was scheduled to vote.

White House spokesman Eric Schultz dismissed the letter, saying Mr. Issa’s analysis of executive privilege had “as much merit as his absurd contention that Operation Fast and Furious was created in order to promote gun control.” He said the privilege claim was consistent with executive branch precedent over three decades.

He said the courts have routinely “affirmed the right of the executive branch to invoke the privilege even when White House documents are not involved.”

The full House is expected to vote on the contempt resolution on Thursday. Mr. Obama has denied any knowledge of Fast and Furious, and has stood solidly behind his attorney general.

House Speaker John A. Boehner said on Tuesday that in legal decisions on the scope of executive privilege during the Bush and Clinton administrations, judges consistently ruled that the privilege did not extend to Cabinet-level officials or their staffs.

But Mr. Schultz countered that the courts have routinely affirmed the right of the executive branch to invoke the privilege even when White House documents are not involved.

Fast and Furious was a gunrunning operation by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) aimed at identifying drug-smuggling bosses in Mexico who were buying weapons from Phoenix gun shops. More than 2,000 weapons were sold and “walked” into Mexico, but the ATF lost track of them.

The operation, which began in September 2009, was shut down only after U.S. Border Patrol Agent Brian A. Terry was killed during a December 2010 gunfight with Mexican bandits near the Mexican border, south of Tucson, Ariz. Two weapons found at the site were traced to the Fast and Furious operation.

Rep. Elijah E. Cummings of Maryland, ranking Democrat on the House Oversight and Government Reform Committee, said Mr. Issa’s push to hold Mr. Holder in contempt “has gone too far.” Still, Mr. Cummings said it wasn’t too late for the dispute to be worked out, and implored Mr. Boehner to intervene and to talk to the attorney general directly.

“We have a duty to do what we can to accommodate the executive branch,” he said. “And of course, they have a duty to accommodate us.”

While no Democrats backed the contempt citation in the committee vote, House Minority Whip Steny H. Hoyer, Maryland Democrat, told reporters Tuesday that some in his party may vote yes on the House floor, especially after the National Rifle Association said it would record how members voted for its annual legislative scorecard.