It Only Hurts Me When I Cry

“The lady doth protest too much, methinks.”

            —Queen Gertrude in Hamlet

My, my, my.  Things in the most transparent of all transparent and accountable administrations just got a little more opaque and a little less, well, accountable.

On Wednesday President Obama granted Attorney General Eric Holder’s request to invoke executive privilege to avoid disclosing documents being sought by the House Oversight and Government Reform Committee relating to the investigation of Operation Fast & Furious.  As we touched on last last Monday, at issue are some 1,300 documents dating from February 2011 forward that the Committee has been trying to see since last October.  Holder tries to make that and the 7,600 pages already provided sound like a monumental effort.  As a commercial litigator, I can tell you it’s not.  A standard banker’s box (the roughly 16 x 20 inch box commonly used for storing and transporting documents) holds about 2,000 pages.  So the DOJ’s production to date consists of a grand total of less than four boxes; you will find at least that many on the floor in any associate’s office at any decent-sized law firm.  Over my nearly two decades in litigation practice, it was not uncommon to see document productions a couple of orders of magnitude larger.  1,300 documents is nothing.  Yet the Attorney General has delayed, redirected, and outright refused to comply with the subpoena (although in fairness he did sit down with Committee Chair Representative Darrell Issa (R-CA) to discuss the documents off the record). 

But Obama’s jumping into the fray with Wednesday’s privilege claim raises interesting questions.

First, where has this claim been for the last 8-9 months?  If these documents are properly covered by executive privilege, why was that privilege only invoked on the eve of Holder facing a possible contempt of Congress charge?  In litigation, a privilege that isn’t timely asserted is waived.  The documents are either privileged, or they’re not.  If the privilege applied, it has applied all along.  And it's more than passing curious that although as recently as Tuesday night neither Holder nor Obama had said so much as "boo" about asserting any privilege, by Wednesday morning Holder had a detailed eight page, single spaced letter to the President setting out his legal research supporting the claim and asking the President to do it; the President had read it, presumably digested it and maybe even discussed it with the Attorney General or with White House counsel, and made the decision to act on it; and the Department of Justice had a four page, single spaced letter to Representative Issa informing him of Obama's decision to invoke the privilege and explaining Holder's version of events.  Of course, I'm just speculating, but having been around a legal opinion letter or fifty in my time, I know they typically don't come to pass overnight; one suspects Holder and Obama have been holding this in their back pocket for some time.  Why are we only seeing it now?

Second, the executive privilege exists to protect candor in the executive’s deliberative process.  In other words, we want to ensure that the President receives the most candid internal discussion and advice in the course of his decision making, and without the privilege his advisors might be more guarded and less helpful than they might otherwise be.  If that’s so, then how can these documents be covered by the executive privilege if Holder had to write to tell Obama what they were, and affirmatively ask Obama to claim the privilege?  That is, if they were truly part of executive decision-making, shouldn’t the executive already know what those documents are and be seeking on his own to claim the privilege?

Third, to what “deliberative process” do these documents pertain, and more importantly, of what vital national security interest are they such that they need to be protected (a point then-Senator Obama made on national TV in criticizing the Bush administration’s invocation of the privilege)?  Fast & Furious, an operation even Holder has publicly admitted was a “mistake” that “should never have happened,” is over.  It’s not an ongoing project.  Moreover, the documents at issue don’t deal with the operation itself, and thus should have no implications in terms of jeopardizing personnel or current law enforcement activities.

In his letter to the President justifying his request that Obama claim the privilege, Holder throws the phrase “deliberative process” around like so much candy, because he knows it is the touchstone for the legal standard governing whether the privilege applies.  But he uses it with no mooring to any substantive executive branch activity, instead apparently assuming that if he just uses the phrase enough times, it will be accepted as the truth.  The best Holder can do is claim that the documents from February 2011 forward deal with executive branch deliberations over how to respond to the media and to the Congressional inquiry.  In other words, they are documents not about the administration’s policy or the law enforcement project, but on how the administration was going to cover its ass once Fast & Furious became public. 

Given that the Justice Department originally told Congress on February 4, 2011 that there was no Fast & Furious—a representation Holder has since had to admit was “incorrect” (read: an outright lie), the administration’s response IS the issue.  The salient point Representative Issa has been trying to get at for months has been who knew about the operation and when, and why was Congress originally told it didn’t exist (not coincidentally, essentially the same questions asked of the Nixon administration with respect to Watergate; the difference here is we have at least one dead American as a direct result of the activity the administration initially denied even took place).  The documents Holder, and now Obama, are withholding go directly to those questions.

Fourth, and most importantly, why are Holder and Obama going to such lengths to prevent these documents from seeing the light of day?  What’s in those documents that is so vital they not be turned over to Congress?  We are repeatedly told not to worry about it because the DOJ’s Inspector General is investigating, but of course that’s like the wolf telling you not to worry about that incident in the chicken coop because the fox is looking into it.  Oh, OK.  Meanwhile, every time Issa’s committee presses further, Holder’s and the DOJ’s story changes; Wednesday, the DOJ was forced to retract Holder's recent testimony in which he attempted—erroneously and with no evidence—to claim that the Bush administration was briefed on a similar sting called Operation Wide Receiver.  If there’s nothing nefarious going on, why all the secrecy, and why can’t they keep their tale straight?  Why are they crying unless the questions hurt?

And why do they have to keep trying to blame Bush?

Assuming Obama and Holder are both clean on this, there’s no reason for them to resist turning these things over, and indeed doing so would presumably have demonstrated that very fact, and thus long ago ended any political mileage for Representative Issa to gain by continuing to investigate.  Yet the family of slain Border Agent Brian Terry and the American people remain with no answers as to who in this most transparent of all transparent administrations is to be accountable.

They and we deserve better.