Congressman Jim Sensenbrenner (R-WI), former Chairman of the House Judiciary Committee today spoke on the House Floor in support of the Contempt Citation of Attorney General Eric Holder for obstructing Congress’ oversight responsibility.
The White House is asserting deliberative process executive privilege, but the law clearly states that this type of executive privilege does not apply to situations where there is any reason to believe misconduct has occurred.
Sensenbrenner released this memo on executive privilege:
Memo From: F. James Sensenbrenner, Former Chairman House Judiciary Committee
The President’s assertion of executive privilege is an illegal attempt to avoid responsibility for the Department’s misconduct. There are 4 grounds for asserting executive privilege: (1) the state secrets privilege, (2) the presidential communications privilege, (3) the attorney client or attorney work product privilege, and (4) the deliberative process privilege.
The President is relying on the deliberative process privilege. The privilege, however, cannot be used to protect documents in the face of wrongdoing. The DC Circuit wrote that the deliberative process privilege is more easily overcome than the presidential communications privilege. It continued: “Moreover, the privilege disappears altogether when there is any reason to believe government misconduct occurred.” In Re: Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997); see also Judicial Watch v. Dept. of Just., 365 F.3d 1108 (D.C. Cir. 2004).
The First Circuit agreed. It found that, where there is reason to believe the documents sought may shed light on government misconduct, “the privilege is routinely denied,” on the grounds that shielding internal government deliberations in this context does not serve “the public’s interest in honest, effective government.” Texaco Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867, 885 (1st Cir. 1995).
The White House asserted its privilege in the face of Congressional contempt proceedings. On February 4, 2011, the Department of Justice responded to Senator Grassley by categorically denying that the ATF walked guns. The Department wrote that “the allegation described in your January 27 letter—that ATF ‘sanctioned’ or otherwise knowingly allowed the sale of assault weapons to a straw purchaser who then transported into Mexico—is false.”
At the time the letter was written, several high ranking individuals involved with the drafting and review of the letter knew that ATF had walked guns. Nonetheless, it took nine months for the Department to withdraw its letter and officially correct the record. In May 2011, the Attorney General testified before the House Judiciary Committee that he had first heard of Operation Fast and Furious a few weeks before the hearing. Over 6 months later, he conceded that he should have said “a few months.”
This is clear evidence of a cover-up. Whether that cover-up was institution-wide or limited to a few individuals who failed to come forward is unclear. The Committee on Oversight and Government Reform subpoenaed the documents relevant to this cover-up, and the White House cannot legally assert the deliberative process privilege to hide evidence of the Department’s wrongdoing. The Attorney General needs to produce the documents pursuant to Congress’s subpoena.