SCATHING! Committee on “Oversight and Government Reform” Letter From Darrell Issa To barack hussain obama.
June 25, 2012
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
June 25, 2012
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
June 25, 2012
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,
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.
courts have never considered executive privilege to extend to internal Executive Branch
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
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).
June 25, 2012
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
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).
June 25, 2012
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).
Obama Defends Attorney General: Holder Faces Scrutiny over ATF’s Fast and Furious Gun
, CHARLOTTE OBSERVER
, 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,
June 25, 2012
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.
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.).
Guns Groups To Sue over New Obama Regulations, DOJ Vows To “Vigorously Oppose,”
Congress Contempt Charge for U.S. Attorney General Holder, BBC NEWS
, June 21, 2012,
June 25, 2012
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.
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
Senator Patrick Leahy, Chairman
Committee on the Judiciary
The Honorable Kathryn Ruemmler, Counsel to the President