Minutes before Attorney General Eric Holder Jr. faced a contempt of Congress vote this morning for not turning over documents related to the botched Fast and Furious gun-trafficking operation, the White House claimed executive privilege over the documents.
The assertion injected last-minute uncertainty and chaos into hearing of the House Oversight and Government Reform Committee, but Chairman Rep. Darrell Issa (R-Calif.) pushed forward, saying: "This untimely assertion by the Justice Department falls short of any reason to delay today's proceedings."
The Ranking Minority Member Rep. Elijah Cummings (D-Md.) urged the committee to wait on the vote, saying that he felt Issa was not interested in a resolution, only in scoring political points. "I believe we need to study this and make sure we understand what the president is asserting here," Cummings said.
But the contempt vote is moving forward this morning. Already, members of Congress and their staffs are scrambling to understand the ramifications of President Barack Obama's assertions of executive privilege.
"The assertion of executive privilege raises monumental questions," Sen. Chuck Grassley (R-Iowa) said in a written statement. "How can the President assert executive privilege if there was no White House involvement? How can the President exert executive privilege over documents he's supposedly never seen? Is something very big being hidden to go to this extreme?"
In an email response, White House spokesman Eric Schultz pointed out that former President George W. Bush asserted executive privilege six times, former President Bill Clinton 14 times, and both "protected the same category of documents we’re protecting today."
Those documents are after-the-fact internal executive branch materials responding to congressional and media inquiries, and in this case from the Justice Department, Schultz said.
At the ongoing House hearing, however, the accusations of politics were flying.
Rep. John Mica (R-Fla.) said in remarks the White House assertion of executive privilege is an attempt to "thwart" the Fast and Furious investigation. "This is a very sad day for the United States of America, when the president would engage himself at the last minute to assert the executive privilege," Mica said.
The hearing started today after last-minute negotiations between Issa and Holder ended Tuesday night without a resolution. Holder had agreed to turn over some documents and said DOJ was willing to make an "extraordinary accommodation" of holding a briefing with the lawmakers.
Issa said he went into the meeting Tuesday with Holder with the "full intent" of a likely postponement of the contempt proceedings. "We did have people here all night with hopes that those documents would arrive," Issa said.
But Issa said today at the beginning of the contempt hearing today that Holder would only agree turn over documents if that meant the Oversight Committee's investigation would end. The Department of Justice still has not turned over key documents subpoenaed 18 months ago as part of an inquiry into the botched Fast and Furious gun-smuggling investigation, Issa said.
Issa said that ending the investigation without seeing what was in the documents was not a solution he could accept. Grassley agreed, and said he was "not going to buy a pig in a poke."
Issa and Grassley are seeking documents explaining how Holder and the department learned of controversial tactics used in Fast and Furious, and how that understanding "evolved" after Feb. 4, 2011, the day the department gave incorrect information to Congress about the investigation that it later rescinded.
The legal basis for the President's assertion of executive privilege is set forth in a letter to the President from Holder, according to a letter to Issa from Deputy Attorney General James Cole.
"In brief, the compelled production to Congress of these internal Executive Branch documents generated in the course of the deliberative process concerning the Department's response to congressional oversight and related media inquiries would have significant, damaging consequences," Cole's letter states. "As I explained at our meeting yesterday, it would inhibit the candor of such Executive Branch deliberations in the future and significantly impair the Executive Branch's ability to respond independently and effectively to congressional oversight.
"Such compelled disclosure would be inconsistent with the separation of powers established in the Constitution and would potentially create an imbalance in the relationship between these two co-equal branches of the Government," Cole's letter states.