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Mr. SENSENBRENNER. Mr. Speaker, this isn't about politics. This is about the Constitution, and it's about Congress's mandate to do oversight over both the executive and judicial branches of government.
The President is asserting executive privilege to attempt to shield these documents, and he is relying on a type of privilege called the deliberative process privilege. However, that privilege disappears when Congress is investigating evidence of wrongdoing.
In 1997, the U.S. Court of Appeals for the District of Columbia Circuit wrote, in part:
Moreover, the privilege disappears altogether when there is any reason to believe government misconduct occurred.
In another case that was decided by the First Circuit in 1995, it says that the grounds that shielding internal government deliberations in this context does not serve ``the public's interest in honest, effective government.''
There's been misconduct that's already a matter of public record in two instances. The Justice Department wrote Senator Grassley in January of 2011 saying that the ATF-sanctioned gunwalking across the border was false, and it took them 9 months to retract that letter. So they misled Congress, and then 9 months later they said, Oops, maybe we did mislead Congress and we'll withdraw the letter. And in May 2011, the Attorney General testified before the Judiciary Committee that he 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.''
Now, this very clearly shows that Congress has got the obligation to get to the bottom of this and that the assertion of executive privilege by the President and the Attorney General is not based in law. We ought to go ahead and do our job and do our oversight. It's too bad that the Justice Department has decided to try to obstruct Congress' ability to do it.
Pass the resolution.
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