Attorney General Defends Charges Brought by House over Weapons Trafficking Initiatives

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Eric Holder has spent his entire career as the adversary of criminal defense attorneys; first as a US attorney, then as Deputy Attorney General, and since assuming the office of United States Attorney General. However, the head of the Department of Justice will need his own criminal defense attorney to fight the criminal contempt of Congress charged levied on him recently by the Republican majority House of Representatives. Holder faces both civil and criminal contempt charges, which stem from his refusal to produce documents relating to Operation Fast and Furious, the ATF gun-walking scandal which erupted early last year. Gun-walking, a practice long barred by DOJ policy, is a counter-intuitive law enforcement method of detecting firearms violations such as weapons trafficking and criminal gun possession. Agents employing this method distribute firearms on the black market (read: to criminals), and then track those firearms as they are sold and resold in hopes of penetrating larger trafficking and smuggling operations. Federal agents in Arizona had experimented with gun-walking in 3 investigations during the Bush administration (before Operation Fast and Furious), and had lost track of several hundred weapons during the earlier operations. Operation Fast and Furious identified over 2000 illegally purchased firearms, 1400 of which have yet to be recovered. In February of 2011, the Justice Department represented to Congress that the risky tactic was used to allow firearms to “walk” from Arizona to Mexico as part of the operation. The DOJ failed to acknowledge this incorrect statement for 10 months.

In the aftermath of the scandal, the House subpoenaed all records relating to the incorrect statement. The Attorney General objected to the subpoena, refusing to hand over the documents. President Obama came to the AG’s defense, asserting executive privilege over the documents, which would prevent their disclosure to the House Oversight and Government Reform Committees. At Holder’s refusal to turn over the documents, the House held Holder in civil and criminal contempt of Congress. The resolution of the civil contempt claim led to Monday’s lawsuit, which asks a federal judge to:

a) declare Obama’s executive privilege claim invalid

b) reject Holder’s objection to the House records subpoena

c) direct the Attorney General to produce all records related to the Justice Department’s incorrect assertion in early 2011 that gun-walking did not take place.

The lawsuit alleges that the administration’s position, if accepted, “would cripple congressional oversight of executive branch agencies.” The Justice Department has previously said that it would not bring criminal charges against the head of their own department, while Democrats labeled both contempt citations as a political stunt. Says DOJ spokeswoman Tracy Schmaler: “We were always willing to work with the committee. Instead the House and committee have said they prefer to litigate.” Numerous lawmakers have said that this is the first time in US history that a Cabinet official has been held in contempt of Congress.

The lawsuit alleges that the administration’s position of executive privilege is “legally baseless” and rests entirely on a common law privilege known as “deliberative process privilege.” Historically, executive privilege has been asserted over two distinct categories of documents. The first, known as presidential communications, covers only the president’s own documents and those of his top aides preparing advice for the president. The second, known as deliberative process, covers a wider category of administration officials, even if they are not working on something specifically for the president, but requires a stronger justification for the privilege to attach. A federal appeals court has ruled that deliberative process privilege is easier for Congress to overcome and that it “disappears altogether when there is any reason to believe that government misconduct has occurred.” The lawsuit filed Monday asserts three legal grounds for the challenge to the executive privilege claim:

a) the privilege was asserted indirectly by the deputy attorney general in a letter Congress earlier this year

b) the documents do not involve any advice to the president

c) the department’s actions do not involve core constitutional functions of the president.

The lawsuit asserts that the documents, if produced, “would enable the committee (and the American people) to understand how and why the department provided false information to Congress and otherwise obstructed the committee’s concededly legitimate investigation.”