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Darrell Issa Suit: Eric Holder’s Executive Privilege Claim ‘Legally Baseless’

A lawsuit filed today by House Oversight and Government Reform Chairman Darrell Issa (R-Calif.) alleged Attorney General Eric Holder is standing on a “legally baseless” claim in refusing to provide internal Justice Department documents relating to the “Fast and Furious” gun walking investigation.

“No Court has ever held that ‘Executive privilege’ extends anywhere near as far as the Attorney General here contends that it does,” the legal complaint, filed with the U.S. District Court for the District of Columbia, said. President Barack Obama on June 20 asserted executive privilege in backing Holder’s refusal to turn over some documents subpoenaed by the committee.

Holder said in a June 19 letter to Obama that releasing the documents in question would have “significant, damaging consequences” because it would “inhibit the candor” of future internal deliberations at the DOJ. But the House moved forward anyway on June 28 and voted to find Holder in contempt of Congress.

Rep. Elijah Cummings (D-Md.), the ranking member on the Oversight panel, dismissed the suit as a partisan stunt. “It seems clear that House Republican leaders do not want to resolve the contempt issue and prefer to generate unnecessary conflict with the administration as the election nears,” Cummings said.

The case was assigned to Judge Amy Berman Jackson, an Obama appointee.

In Fast and Furious, agents for the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed assault guns to “walk,” which meant ending surveillance on weapons suspected to be en route to Mexican drug cartels. The tactic, intended to allow agents to track criminal networks by finding the guns at crime scenes, was condemned after two guns that were part of the operation were found at the 2010 murder scene of Border Patrol agent Brian Terry.

Issa’s complaint contains a long, detailed history of his committee’s attempts to secure the documents at issue. It does not contain a lengthy legal argument about the scope of Congress’ oversight authorities.

The history includes informal requests, documents provided by whistleblowers, two subpoenas and eventually holding Holder in contempt of Congress.

Early in the investigation, DOJ officials broadly denied that the tactics in Fast and Furious had ever been used, saying in a Feb. 4, 2011, letter to Sen. Chuck Grassley (R-Iowa) that any such allegations were “false.”

Ten months later, the DOJ conceded the letter contained inaccuracies and rescinded it. Holder has said Fast and Furious was “fundamentally flawed.”

Although the subpoenas demand a far wider range of documents, in the suit Issa is only focused on a specific category of internal communications that followed the DOJ’s Feb. 4 denial letter. The lawsuit said the documents are crucial to understanding who in the department knew of and approved the use of gunwalking and whether efforts were made to keep Congress in the dark.

The initial denial “suggests, at best, a serious breakdown in communications and lines of authority within the Department’s chain of command, a breakdown that may need to be addressed by legislation; at worst, it suggests a conscious effort on the part of senior Department officials to mislead the Committee and frustrate a legitimate oversight investigation,” the complaint said.

Citing the potential need for legislation is legally pivotal because Congressional oversight authority is linked to a “legislative purpose.”

Holder said in his June 19 letter that the documents are covered by executive privilege because they are “deliberative communications.” Holder cites legal memos from several previous attorneys general arguing those types of documents are protected by the privilege, including Michael Mukasey, who served under President George W. Bush.

Issa’s suit said Holder is relying “entirely on a common law privilege known as the ‘deliberative process privilege'” because no communications with the president or his senior aides are claimed to have occurred.

In the most recent conflict between Congress and the president over a Congressional subpoena, Democrats’ and Republicans’ roles were reversed.

The Democratic-led House held two White House aides, Harriet Miers and Josh Bolten, in contempt of Congress for refusing to comply with subpoenas issued to the George W. Bush administration. Republicans, including Issa, defended the administration, while Democrats said it was unlawful.

After the House held Miers and Bolten in contempt, the Judiciary Committee sued the two aides in federal district court.

In August 2008, a federal judge ordered Miers to testify and Bolten to turn over documents, overruling the administration’s claim of executive privilege. That ruling was appealed.

In March 2009, a year after the suit was filed, Miers and Karl Rove, who had also become ensnared in a separate contempt proceeding, agreed to testify behind closed doors to the House Judiciary Committee. The deal broke the stalemate.

A report by the Congressional Research Service on Congressional oversight of the DOJ offers a broad view of Congress’ legal authority to demand internal documents.

The report says that from 1920 to 2007, Congress has “consistently sought and obtained” internal DOJ documents and successfully demanded information “from the Attorney General down to subordinate personnel,” adding that court precedents have affirmed broad Congressional investigative authority in nearly every instance, regardless of whether the documents relate to ongoing criminal investigations.