House Panel Holds U.S. Attorney General In Contempt

For the first time since President Obama took office, the White House has invoked executive privilege in a dispute with Congress. Obama sided with his Justice Department and refused to turn over documents to House Republicans in their probe of the botched gun-trafficking operation known as Fast and Furious. But the aggressive move by the president was not enough to stop a Republican committee from voting to hold his attorney general in contempt.

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And for the first time since President Obama took office, his White House has invoked executive privilege in a dispute with Congress. Mr. Obama sided with his Justice Department and refused to turn over documents to House Republicans in their probe of a botched operation aimed at netting drug lords that involved gun trafficking. It was known as Fast and Furious. The aggressive move by the president was not enough to stop a Republican committee from voting to hold his attorney general in contempt.

NPR's Carrie Johnson reports.

CARRIE JOHNSON, BYLINE: Every administration has its share of scandals - oversight fights with Congress, games-of-tug of war over embarrassing information. During the George W. Bush years, the White House exerted executive privilege to protect papers and testimony about the firings of U.S. attorneys. And during President Clinton's tenure, he invoked the privilege 14 times.

But back in 2008, Barack Obama took a dim view of the idea, so recalled Trey Gowdy, a Republican congressman from South Carolina.

REPRESENTATIVE TREY GOWDY: And with respect to executive privilege, I'm going to resist the temptation to contrast Senator Obama's position on executive privilege with President Obama's position of executive privilege, but I would just note the juxtaposition is stark.

JOHNSON: Administration officials said the move was meant to protect the principle of keeping internal deliberations private and away from the prying eyes of lawmakers. But it raised suspicions for Indiana Republican Dan Burton. Burton's a member of the House Committee that voted yesterday to hold the attorney general in contempt of Congress.

REPRESENTATIVE DAN BURTON: Why would the president claim executive privilege unless there was something very, very important that he felt should not be made known to this committee and possibly to the public?

JOHNSON: It's not clear exactly what's in the batch of sensitive documents, but correspondence from Attorney General Eric Holder and his deputy seems to suggest the papers detail efforts within the Justice Department to do damage control on Fast and Furious after department officials mistakenly told Congress back in February 2011 that nothing wrong had taken place.

REPRESENTATIVE ELIJAH CUMMINGS: This whole idea, everybody - oh, what's he hiding? Well, I don't think he's hiding a damn thing.

JOHNSON: Elijah Cummings is a Democrat from Maryland. Cummings met with Holder this week and he says he came away with the idea the decision on executive privilege was about upholding precedent and protecting executive branch decision making.

CUMMINGS: He made it clear that this was his watch and that there's certain things that attorney generals protect as a part of this office.

JOHNSON: At this point there's no evidence that Mr. Obama played a hands-on role in helping to clean up the Fast and Furious mess last year, though he apparently has been in contact with Republican House leaders recently to try to stave off a contempt vote against his attorney general. So if the president isn't using his privilege to protect direct communications or talks with his closest advisors, the strongest kind of executive privilege, he's using another form of his power known as the deliberative process privilege.

Delegate Eleanor Holmes-Norton, a Democrat from Washington D.C., explains.

DELEGATE ELEANOR HOLMES-NORTON: Under Republican and Democratic administrations, the executive has often invoked executive privilege with respect to pre-decisional deliberative communications.

JOHNSON: Let's break that down. Deliberative privilege covers debates within the executive branch before formal decisions are made over how to respond to lawmakers. Michael Steel, a spokesman for GOP House Speaker John Boehner, characterized the White House argument as pretty weak. Steel pointed out to reporters that deliberative process claims have sometimes been thrown out by courts or withdrawn by previous White Houses in the face of legal challenges. But those legal challenges take time, says Tennessee Republican Scott DesJarlais.

REPRESENTATIVE SCOTT DESJARLAIS: And I don't think that's lost on the attorney general's office. It starts to feel like they're just trying to run out the clock.

JOHNSON: As Congress prepares for its July recess, and with elections coming up in November, those Fast and Furious documents could remain secret for a good long while. Carrie Johnson, NPR News, Washington.

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