Home > A.G. Holder, ATF > SCATHING! Committee on “Oversight and Government Reform” Letter From Darrell Issa To barack hussain obama.

SCATHING! Committee on “Oversight and Government Reform” Letter From Darrell Issa To barack hussain obama.

June 25, 2012

The President

The White House

Washington, D.C. 20500

Dear Mr. President:

On June 19, 2012, shortly after leaving a meeting in the U.S. Capitol, Attorney General

Eric Holder wrote to request that you assert executive privilege with respect to Operation Fast

and Furious documents he is withholding from this Committee. The next day, Deputy Attorney

General James Cole notified me in a letter that you had invoked executive privilege. The

Committee received both letters minutes before the scheduled start of a vote to recommend that

the full House hold the Attorney General in contempt of Congress for refusing to comply with its


Courts have consistently held that the assertion of the constitutionally-based executive

privilege — the only privilege that ever can justify the withholding of documents from a

congressional committee by the Executive Branch — is only applicable with respect to

documents and communications that implicate the confidentiality of the President’s decisionmaking

process, defined as those documents and communications to and from the President and

his most senior advisors. Even then, it is a qualified privilege that is overcome by a showing of

the committee’s need for the documents. The letters from Messrs. Holder and Cole cited no case

law to the contrary.

Accordingly, your privilege assertion 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. To date, the White House has steadfastly

maintained that it has not had any role in advising the Department with respect to the

The President

June 25, 2012

Page 2

congressional investigation. The surprising assertion of executive privilege raised the question

of whether that is still the case.

As you know, the Committee voted to recommend that the full House hold Attorney

General Holder in contempt of Congress for his continued refusal to produce relevant documents

in the investigation of Operation Fast and Furious. Last week’s proceeding would not have

occurred had the Attorney General actually produced the subpoenaed documents he said he

could provide. The House of Representatives is scheduled to vote on the contempt resolution

this week. I remain hopeful that the Attorney General will produce the specified documents so

that we can work towards resolving this matter short of a contempt citation. Furthermore, I am

hopeful that, consistent with assertions of executive privilege by previous Administrations, you

will define the universe of documents over which you asserted executive privilege and provide

the Committee with the legal justification from the Justice Department’s Office of Legal Counsel





U.S. Border Patrol Agent Brian Terry was killed in a firefight with a group of armed

Mexican bandits who preyed on illegal immigrants in a canyon west of Rio Rico, Arizona on

December 14, 2010. Two guns traced to Operation Fast and Furious were found at the murder

scene. The Terry family appeared before the Committee on June 15, 2011, to ask for answers

about the program that put guns in the hands of the men who killed their son and brother.

Having been stonewalled for months by the Attorney General and his senior staff, the Committee

issued a subpoena for documents that would provide the Terry family the answers they seek.

The subpoena was served on October 12, 2011.

Internally, over the course of the next eight months, the Justice Department identified

140,000 pages of documents and communications responsive to the Committee’s subpoena. Yet,

the Department handed over only 7,600 of these pages. Through a series of accommodations

and in recognition of certain Executive Branch and law enforcement prerogatives, the Committee

prioritized key documents the Department needed to produce to avoid contempt proceedings.

These key documents would help the Committee understand how and why the Justice

Department moved from denying whistleblower allegations to understanding they were true; the

identities of officials who attempted to retaliate against whistleblowers; the reactions of senior

Department officials when confronted with evidence of gunwalking during Fast and Furious,

including whether they were surprised or already aware of the use of this reckless tactic, and;

whether senior Department officials are being held to the same standard as lower-level

employees who have been blamed for Fast and Furious by their politically-appointed bosses in


I met with Attorney General Holder on June 19, 2012, to attempt to resolve this matter in

advance of the Committee’s scheduled contempt vote. We were joined by Ranking Member

Elijah Cummings and Senators Patrick Leahy and Charles Grassley, respectively the Chairman

and Ranking Member of the Senate Committee on the Judiciary. The Department had previously

identified a small subset of documents created after February 4, 2011 — the date of its letter

The President

June 25, 2012

Page 3

containing the false claim that no gunwalking had occurred — that it would make available to

the Committee. The Justice Department described this small subset as a “fair compilation” of the

full universe of post-February 4th documents responsive to the subpoena.

During the June 19th meeting, the Attorney General stated he wanted to “buy peace.” He

indicated a willingness to produce the “fair compilation” of post-February 4th documents. He

told me that he would provide the “fair compilation” of documents on three conditions: (1) that I

permanently cancel the contempt vote; (2) that I agree the Department was in full compliance

with the Committee’s subpoenas, and; (3) that I accept the “fair compilation,” sight unseen.

As Chairman of the primary investigative Committee of the U.S. House of

Representatives, I considered the Attorney General’s conditions unacceptable, as would have my

predecessors from both sides of the aisle. I simply requested that the Department produce the

“fair compilation” in advance of the contempt vote, with the understanding that I would postpone

the vote to allow the Committee to review the documents.

The short meeting in the Capitol lasted about twenty minutes. The Attorney General left

the meeting and, shortly thereafter, sent an eight-page letter containing more than forty citations

requesting that you assert executive privilege. The following morning, the Deputy Attorney

General informed me that you had taken the extraordinary step of asserting the privilege that is

designed to protect presidential decision making.

In his letter, the Attorney General stated that releasing the documents covered by the

subpoena, some of which he offered to the Committee hours earlier, would have “significant,

damaging consequences.”

1 It remains unclear how — in a matter of hours — the Attorney

General moved from offering those documents in exchange for canceling the contempt vote and

ending the congressional investigation to claiming that they are covered by executive privilege

and that releasing them — which the Attorney General was prepared to do hours earlier —

would now result in “significant, damaging consequences.”


The Scope of Executive Privilege


Deputy Attorney General Cole’s representation that “the President has asserted executive

privilege over the relevant post-February 4, 2011, documents” raised concerns that there was

greater White House involvement in Operation Fast and Furious than previously thought.

2 The

courts have never considered executive privilege to extend to internal Executive Branch

deliberative documents.

Absent from the Attorney General’s eight-page letter were the controlling authorities

from the U.S. Court of Appeals for the District of Columbia. As the court held in the seminal

case of

In re Sealed Case (Espy):



Letter from U.S. Att’y Gen. Eric H. Holder, Jr. to the President (June 19, 2012), at 2.




Letter from Deputy U.S. Att’y Gen. James Cole to Chairman Issa (June 20, 2012).


The President

June 25, 2012

Page 4

The privilege should not extend to staff outside the White House in

executive branch agencies. Instead, the privilege should apply only to

communications authored or solicited and received by those members of

an immediate White House adviser’s staff who have broad and significant

responsibility for investigating and formulating the advice to be given the

President on the particular matter to which the communications relate.


The D.C. Circuit established the “operational proximity test” to determine which

communications are subject to privilege.

Espy made clear that it is “operational proximity to the

President that matters in determining whether the president’s confidentiality interest is



In addition, even if the presidential communications privilege did apply to some of these

subpoenaed documents,

Espy made clear that “the presidential communications privilege is, at all

times, a qualified one,” and that a showing of need could overcome it.

5 Such a need — indeed a

compelling one — plainly exists in this case.

The Justice Department has steadfastly maintained that the documents sought by the

Committee do not implicate the White House whatsoever. If true, they are at best deliberative

documents between and among Department personnel who lack the requisite “operational

proximity” to the President. As such, they cannot be withheld pursuant to the constitutionallybased

executive privilege. Courts distinguish between the presidential communications privilege

and the deliberative process privilege. Both, the

Espy court observed, are executive privileges

designed to protect the confidentiality of Executive Branch decision-making. The deliberativeprocess

privilege, however, which applies to executive branch officials generally, is a common

law privilege that requires a lower threshold of need to be overcome, and “disappears altogether

when there is any reason to believe government misconduct has occurred.”


The Committee must assume that the White House Counsel’s Office is fully aware of the

prevailing authorities of

Espy, discussed above, and Judicial Watch v. Dep’t of Justice.7 If the

invocation of executive privilege was proper, it calls into question a number of public statements

about the involvement of the White House made by you, your staff, and the Attorney General.

Finally, the Attorney General’s letter to you cited numerous authorities from prior

Administrations of both parties. It is important to note that the OLC opinions provided as

authorities to justify expansive views of executive privilege are inconsistent with existing case



In re Sealed Case

(Espy), 121 F.3d 729 (D.C. Cir. 1997).












Congressional Research Service, Presidential Claims of Executive Privilege: History, Law, Practice, and Recent

Developments (Aug. 21, 2008).





365 F.3d 1108 (D.C. Cir. 2004) (holding that presidential communications privilege only applied to documents

“solicited and received” by the President or his immediate advisers).



The President

June 25, 2012

Page 5


Remarks about White House Involvement in Fast and Furious


For the past sixteen months, Senator Grassley and I have been investigating Operation

Fast and Furious. In response to a question about the operation during an interview with

Univision on March 22, 2011, you stated that, “Well first of all, I did not authorize it. Eric

Holder, the Attorney General, did not authorize it.”

8 You also stated that you were “absolutely

not” informed about Operation Fast and Furious.

9 Later in the interview, you said that “there

may be a situation here in which a serious mistake was made and if that’s the case then we’ll find

out and we’ll hold somebody accountable.”


From the early stages of the investigation, the White House has maintained that no White

House personnel knew anything about Operation Fast and Furious. Your assertion of executive

privilege, however, renews questions about White House involvement.

White House Press Secretary Jay Carney emphasized your denial that you knew about

Fast and Furious. Mr. Carney stated, “I can tell you that, as the president has already said, he did

not know about or authorize this operation.”

11 A few weeks later, Mr. Carney reiterated the

point, stating, “I think he made clear . . . during the Mexican state visit and the press conference

he had then that he found out about this through news reports. And he takes it very seriously.”


In an October 6, 2011 news conference, you maintained that Attorney General Holder

“indicated that he was not aware of what was happening in Fast and Furious.”

13 Regarding your

own awareness, you went on to state, “Certainly I was not. And I think both he and I would have

been very unhappy if somebody had suggested that guns were allowed to pass through that could

have been prevented by the United States of America.”


On March 28, 2012, Senator Grassley and I wrote to Kathryn Ruemmler, who serves as

your Counsel, to request that she grant our numerous requests to interview Kevin O’Reilly, a

member of the White House National Security Staff. We needed Mr. O’Reilly’s testimony to

ascertain the extent of White House involvement in Operation Fast and Furious. In her response,

Ms. Ruemmler advised us that the e-mail communications between Mr. O’Reilly and William

Newell, the Special Agent in Charge of ATF’s Phoenix Field Division, did not reveal “the

existence of any of the inappropriate investigative tactics at issue in your inquiry, let alone any

decision to allow guns to ‘walk.’”

15 She further emphasized “the absence of any evidence that

suggests that Mr. O’Reilly had any involvement in ‘Operation Fast and Furious’ or was aware of



Interview by Jorge Ramos, Univision, with President Barack Obama, San Salvador, El Salvador (Mar. 22, 2011).












The White House, Office of the Press Secretary, Press Briefing by Press Secretary Jay Carney (June 17, 2011).




The White House, Office of the Press Secretary, Press Briefing by Press Secretary Jay Carney (July 5, 2011).



Richard Serrano,

Obama Defends Attorney General: Holder Faces Scrutiny over ATF’s Fast and Furious Gun





, Oct. 7, 2011.








Letter from Hon. Kathryn Ruemmler, Counsel to the President, to Hon. Darrell E. Issa, Chairman, H. Comm. on

Oversight & Gov’t Reform, & Sen. Charles E. Grassley, Ranking Member, S. Comm. on the Judiciary (Apr. 5,





The President

June 25, 2012

Page 6

the existence of any inappropriate investigative tactics.”

16 Your assertion of executive privilege

renews concerns about these denials.

Earlier this month, when House Judiciary Committee Chairman Lamar Smith asked the

Attorney General when the Justice Department first informed the White House about the

questionable tactics used in Fast and Furious, he responded, “I don’t know.”

17 He informed

Chairman Smith that his focus was on “dealing with the problems associated with Fast and

Furious,” and that he was “not awfully concerned about what the knowledge was in the White



Attorney General Holder has assured the public that he takes this matter very seriously,

stating that “to the extent we find that mistakes occurred, people will be held accountable.”


Yet, he has described the Committee’s vote as “an election-year tactic.”

20 Nothing could be

further from the truth. This statement not only betrays a total lack of understanding of our

investigation, it exemplifies the stonewalling we have consistently faced in attempting to work

with the Justice Department. If the Attorney General had produced the responsive documents

more than eight months ago when they were due, or at any time since then, we would not be

where we are today.


Moving Forward


At the heart of the congressional investigation into Operation Fast and Furious are

disastrous consequences: a murdered Border Patrol Agent, his grieving family, countless deaths

in Mexico, and the souring effect on our relationship with Mexico. Members of the Committee

from both sides of the aisle agree that the Terry family deserves answers. So, too, do Agent

Terry’s brothers-in-arms in the border patrol, the Mexican government, and the American

people. Unfortunately, your assertion of executive privilege raises more questions than it

answers. The Attorney General’s conditional offer of a “fair compilation” of a subset of

documents covered by the subpoena, and your assertion of executive privilege, in no way

substitute for the fact that the Justice Department is still grossly deficient in its compliance with

the Committee’s subpoena. By the Department’s own admission, it has withheld more than

130,000 pages of responsive documents.

I still believe that a settlement, rendering further contempt of Congress proceedings

unnecessary, is in the best interests of the Justice Department, Congress, and those most directly

affected by Operation Fast and Furious. In light of the settled law that confines the

constitutionally-based executive privilege to high-level White House communications, I urge






Oversight of the U.S. Dep’t of Justice: Hearing Before the H. Comm. on the Judiciary,

112th Cong. (June 7, 2012)

(Test. of U.S. Att’y Gen. Eric H. Holder, Jr.).








Mike Levine,

Guns Groups To Sue over New Obama Regulations, DOJ Vows To “Vigorously Oppose,”




, Aug. 3, 2011, http://www.foxnews.com/politics/2011/08/03/guns-groups-to-sue-over-new-obamaregulations-





Congress Contempt Charge for U.S. Attorney General Holder, BBC NEWS

, June 21, 2012,




The President

June 25, 2012

Page 7

you to reconsider the decision to withhold documents that would allow Congress to complete its


In the meantime, so that the Committee and the public can better understand your role,

and the role of your most senior advisors, in connection with Operation Fast and Furious, please

clarify the question raised by your assertion of executive privilege: To what extent were you or

your most senior advisors involved in Operation Fast and Furious and the fallout from it,

including the false February 4, 2011 letter provided by the Attorney General to the Committee?

Please also identify any communications, meetings, and teleconferences between the White

House and the Justice Department between February 4, 2011 and June 18, 2012, the day before

the Attorney General requested that you assert executive privilege.

I appreciate your prompt attention to this important matter.


Darrell Issa


cc: The Honorable Elijah E. Cummings, Ranking Member

Committee on Oversight and Government Reform

U.S. House of Representatives

Senator Charles E. Grassley, Ranking Member

Committee on the Judiciary

U.S. Senate

Senator Patrick Leahy, Chairman

Committee on the Judiciary

U.S. Senate

The Honorable Kathryn Ruemmler, Counsel to the President

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