The confrontation between the Obama administration and a House committee over the botched Fast and Furious inquiry obviously has election-year political overtones. But it also involves serious questions of policy and law. Instead of playing a constitutional game of chicken, the administration and Congress should resume negotiations toward an accommodation.
On Wednesday, the House Oversight Committee voted to hold Attorney General Eric Holder in contempt of Congress for refusing to turn over internal emails and other documents related to Fast and Furious, an operation in which thousands of firearms were deliberately circulated by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives and ended up in the hands of Mexican drug cartels. The panel acted hours after President Obama asserted executive privilege in connection with the documents.
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It’s tempting to dismiss this as political theater. Rep. Darrell Issa, R-Calif., head of the committee, is a partisan Republican who has accused the Obama Justice Department of “flawed and weak leadership.” Democrats have called Issa’s investigation a witch hunt. You don’t need a long memory to recall that the parties have traded places since the George W. Bush administration, when a Democratic-controlled House committee found Karl Rove in contempt for refusing to testify about the firing of nine U.S. attorneys.
But it’s not all politics. Fast and Furious, while no Watergate, was a disastrous operation worthy of congressional scrutiny. On the other hand, the courts have held that presidents need to be able to confide in aides and seek advice without fearing that those discussions will be made public, and have therefore afforded them a qualified right to withhold information.
In asking Obama to assert this privilege, Holder argued that executive privilege broadly covers “executive branch deliberative communications.” That suggests some of the documents could be released without intruding on deliberations directly involving Obama. If that’s the case, the administration and the committee should continue to explore a compromise, notwithstanding election-year politics.
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