Can Obama’s ‘Executive Privilege’ really protect him and Holder?

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By: Jeffrey Klein
Political Buzz Examiner

Late yesterday, Attorney General Eric Holder put President Barack Obama ‘between a rock and a hard place,’ after his brief meeting with Rep. Darrell Issa (R-CA), Chairman of the House Oversight and Government Reform Committee, and certain of its’ ranking members, failed to deter Issa from proceeding with a vote on Contempt of Congress charges against Holder today, regarding his refusal to produce “Operation Fast and Furious” documents.

Holder requested an ‘eleventh hour’ assertion of ‘Executive Privilege’ from Obama in an 8-page legalese-packed letter dispatched last night, to provide him with a more than stark measure of defensive cover against what would certainly be a successful Republican majority vote in favor of holding him accountable for not delivering documents called for in the October 2011 subpoena from the committee.

It must have been without hesitation, as if part of a pre-ordained plan, that President Obama obliged Holder’s request, because a 4-page letter from Deputy Attorney James M. Cole arrived in committee chambers before the hearings began, stating the president had in fact asserted Executive Privilege over the documents requested by the committee.

Cole’s letter read, in part…

“We regret that we have arrived at this point, after the many steps we have taken to address the committee’s concerns and to accommodate the committee’s legitimate oversight interests regarding Operation Fast and Furious.

Although we are deeply disappointed that the committee appears intent on proceeding with a contempt vote, the department remains willing to work with the committee to reach a mutually satisfactory resolution of the outstanding issues.”

Holder, in his letter to Obama, requested he assert executive privilege on all [relevant to the subpoena] documents from February 4, 2011 forward, saying they pertain to the “deliberative process” on how to respond to congressional and media inquiries; which was also summarily included in Cole’s letter to Issa et al.

As a point in fact, it was the February 4, 2011 letter to the committee, submitted by Holder, which denied any such operation existed, but was then later retracted by the DOJ due to contrary information provided by ATF “whistleblowers” who the DOJ attempted to silence and censure.

The announcement regarding Cole’s letter instantly touched off a caustic debate on the House Oversight and Government Reform Committee, with Democrats accusing Issa of prosecuting a “political witch hunt,” while Republicans repeated their criticism of Holder’s “stonewalling” over the Fast and Furious probe. Even for Washington, the tone at the hearing was decidedly bitter and accusatory, according to a FOXNews article today by William LaJeunesse and Chad Pergram, who have been covering the story from the beginning.

This included a 5 minute diatribe by Rep. Connolly (D-VA) who characterized the committee proceedings as a “Kangaroo Court,” where the DOJ and Holder were presumed to be guilty.

Then, Connolly also chided Issa about refusing to hear testimony from Bush’s Attorney General Michael Mukasey about “Operation Wide Receiver,” which he described as a similar operation and the genesis of Fast and Furious, because he said Eric Holder stated last week, before Iowa Republican Sen. Chuck Grassley’s counter-part Senate investigative committee on the matter, that Mukasey had been briefed in on it.

Too bad for Rep. Connolly that Sen. Grassley demanded that Holder provide proof of his statement–and found that he could not.

Grassley received a letter from Acting Assistant Attorney General Judith Appelbaum on Monday, claiming that Holder “inadvertently” stated during the Senate committee hearing last week that his predecessor, then-Attorney General Michael Mukasey, had been briefed about a tactic known as gun-walking in a federal program known as Operation Wide Receiver — which bared similarities to Fast and Furious, according to reporting in a FOXNews article today.

“As we explained in a letter to chairman Issa … this briefing paper concerned the case of Fidel Hernandez, not Wide Receiver, as the attorney general inadvertently stated at the hearing,”

And as this was the second, serious retraction having to be made regarding Holder’s sworn testimony in the past seven months, Senator Grassley was quick to rebuke Appelbaum’s letter.

“This is the second time in nearly seven months that the department has gotten its facts wrong about gun walking … Attorney General Holder accused Attorney General Mukasey, without producing any evidence of having been briefed on gun walking in Wide Receiver.”

Grassley also pointed out that the Hernandez operation was fundamentally different from Wide Receiver and Fast and Furious–because it involved cooperation with the Mexican government.

He concluded by saying … “in his eagerness to blame the previous administration [Holder] got his facts wrong.”

Even though many Democrats are quick to point to assertions of Executive Privilege by prior presidents on both sides of the isle, the closest example we have to this situation is President Richard Nixon, who attempted to use it to protect his telephone tapes from the Watergate Senate investigative hearings during his 1974 reelection bid.

The Supreme Court denied Nixon such protection, and after the tapes were found to implicate Nixon in the cover-up of the Watergate break-in, forced his public resignation on August 9, 1974, then led to the indictment, conviction and imprisonment of 43 members of his administration and reelection team.

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