Letter to Barack Obama, President of the United States - Scope of Executive Privilege

Letter

Senator Chuck Grassley has asked President Obama for a description of the scope of the executive privilege claim made this morning for documents in the congressional investigation of the Fast and Furious program, where the government allowed as many as 2,500 guns to be illegally purchased and trafficked to Mexico.

In a letter to the President this afternoon, Grassley asked if the privilege was being asserted only with regard to documents called for by a subpoena from the oversight committee in the House of Representatives that may have involved communications with the President, or if the privilege was being extended to records of purely internal Justice Department communications, not involving the White House.

Grassley has questioned the last-minute assertion of executive privilege by the President regarding Fast and Furious. "At no point in the last 18 months since I started asking questions has the Department of Justice hinted that there was a potential that the documents might be subject to executive privilege. That includes a face-to-face meeting with the Attorney General last night," Grassley said. "If it were a serious claim, the administration would have and should have raised it last night, if not much earlier."

In fact, some White House emails involving the Fast and Furious program already have been turned over to congressional investigators, including messages between White House National Security staffer Kevin O'Reilly and William Newell, Special Agent in Charge of Phoenix field division for the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

The congressional investigation began with Senator Grassley's inquiry into whistleblower allegations first made in January 2011 that the government had allowed the transfer of the illegally-purchased weapons later found at the scene of the murder of U.S. Border Patrol Agent Brian Terry. The Department of Justice denied the allegations to Senator Grassley for 10 months before being forced to withdraw its denial in face of evidence to the contrary.

"We owe no less to the family of Brian Terry than our best effort to get to the truth," Grassley said. "That has been my primary goal all along. It is what motivated the whistleblowers to risk their careers, and it is why I will continue to insist on answers."

The Iowa senator said the House committee investigating the gun-walking operation was forced to subpoena documents due to stonewalling by the Department of Justice and that the contempt citation is "an important" procedural mechanism in our system of checks and balances. "Congress has a constitutional responsibility to determine what happened so that there's accountability and this kind of disastrous government program never happens again," he said.

June 20, 2012

VIA ELECTRONIC TRANSMISSION

President Barack Obama
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500

Dear Mr. President:

This morning, the House Committee on Oversight and Government Reform
began considering a contempt citation against Attorney General Holder for his refusal to deliver documents related to Operation Fast and Furious. As you know, two guns that federal law enforcement allowed to be illegally purchased and trafficked to Mexico as part of that operation were found at the murder scene of Border Patrol Agent Brian Terry on December 14, 2010. I have been seeking documents related to this matter from the Justice Department since January 2011.

At the last minute before the House Committee proceedings began this morning, I received notice that you were claiming executive privilege. After 18 months of
investigation and interaction with Justice Department officials on this matter, this was the first indication that anyone at the Department or the White House believed the documents being sought were subject to executive privilege claims. Last week, I questioned the Attorney General about a specific example of a document that I and the House Committee have been seeking and whether there could be a legitimate claim of executive privilege over that document and others like it. The document I referenced is an internal email from the then-Acting Director of ATF to people at ATF and DOJ
headquarters.

The Attorney General was not clear in response to my question whether he
believed that executive privilege could be asserted with regard to that document or others like it. Rather than executive privilege, the Attorney General talked about "deliberative process." He indicated a willingness to provide that document and others like it, if the possibility of contempt were to be taken off the table. Yet this morning, it appears that you may be claiming executive privilege over the very same type of document--internal Justice Department communications not involving the White House--that the Attorney General said he was willing to provide.

Can you please provide a more precise description of the scope of your executive
privilege claim? Are you asserting it only with regard to documents called for by the subpoena that may have involved communications with you? Or are you extending your claim to records of purely internal Justice Department communications, not involving the White House? Please provide a more detailed description of the documents that you are or are not asserting executive privilege to protect.

Sincerely,

Charles E. Grassley
Ranking Member

cc: Darrell Issa
Chairman
Committee on Oversight and Government Reform
U.S. House of Representatives

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