In a major victory for Congress, U.S. District Judge Amy Jackson Berman rejected the executive privilege claims of the Obama Administration in withholding documents from a House Committee looking into the Fast and Furious “gun-walking” scandal. I have long maintained that the refusal of the Administration to turn over material to this and other committees is denial of congressional authority protected under Article I. The case is Comm. on Oversight & Gov’t Reform v. Lynch, 2016 U.S. Dist. LEXIS 5713.
The “Fast and Furious” investigation is a classic example of congressional oversight in looking into the effort by the Bureau of Alcohol, Tobacco, Firearms and Explosives to track guns across the Southwest border. The result was horrific and one of the guns was used to kill a federal officer. Since being made public, the Administration has been stonewalling and slow-walking document demands. The result was that former Attorney General Eric Holder was held in contempt of Congress. The Justice Department then refused to submit the case to a grand jury — a decision that I heavily criticized at the time.
Berman correctly noted that the Administration was making implausible executive privilege claims while it was releasing the same information through other channels.
What harm to the interests advanced by the privilege would flow from the transfer of the specific records sought here to the Committee when the Department has already elected to release a detailed Inspector General report that quotes liberally from the same records? See IG Report at 329-417; see also Reply in Supp. of Def.’s Mot. to Dismiss at 25 (stating that the IG Report “discloses vast amounts of information that the Committee purported to seek in its Complaint”). The Department has already laid bare the records of its internal deliberations – and even published portions of interviews revealing its officials’ thoughts and impressions about those records.
This is but one of a myriad of instances where the Administration has refused congressional demands for information and documents in the exercise of its oversight duties. Whether citizens agree with the majority in Congress today, they should see the danger in a president denying the legislative branch such information needed to perform its vital check and balance role in our system. What was most striking about this case is the utter lack of a plausible or credible claim of privilege. Yet, the Justice Department continued to litigate the case to delay and obstruct the congressional committee.
This record goes beyond the simple failure to fulfill President Obama’s pledge to be the most transparent Administration in history. It strikes at the very heart of our constitutional system in my view.