NOVEMBER 24, 2014
After using executive privilege to withhold Fast and Furious records for two years, the Obama administration has quietly stopped exerting the power to hide information about the disastrous gun-running operation.
Judicial Watch attorneys discovered the extraordinary about-face in recent exchanges with Department of Justice (DOJ). JW has been a leader in exposing the Fast and Furious scandal and has filed several Freedom of Information Act (FOIA) lawsuits against the federal agencies involved in the once-secret operation. Just last month JW obtained records showing that the president’s trusted senior advisor, Valerie Jarrett, was a key player in the Fast and Furious cover-up and that Obama exerted executive privilege for Holder’s wife and mother to conceal emails with the Attorney General involving the operation.
Executive privilege has been the administration’s first-line of defense against transparency involving the Fast and Furious since information began to leak in the media. The Bureau of Alcohol, Tobacco Firearms and Explosives (ATF) ran the scandalous program that allowed guns from the U.S. to be smuggled into Mexico so they could eventually be traced to drug cartels. Instead, federal law enforcement officers lost track of hundreds of weapons which have been used in an unknown number of crimes, including the murder of a U.S. Border Patrol agent in Arizona.
In a frantic effort to keep details of the outrageous initiative secret, the administration quickly resorted to executive privilege. In fact, up until last month all correspondence between JW and the DOJ involving ongoing Fast and Furious litigation cite executive privilege. Here is the same old tired line included in all exchanges related to JW’s cases: “Consistent with what the Department of Justice (“Department”) previously has conveyed to the court, and to Judicial Watch, Inc., all material responsive to the FOIA request at issue in this case is subject to the assertion of Executive Privilege.”
However, the privilege was abruptly omitted from a recent letter that the DOJ sent JW and is no longer mentioned during telephonic communications between JW and DOJ lawyers. Here’s why, according to JW Attorney Michael Bekesha, lead counsel on the Fast and Furious cases; the administration realized it didn’t have a case for executive privilege. So, why claim it in the first place? “When the scandal hit, they had to figure out a way to withhold records,” Bekesha said. “It was a political decision and it’s no longer a political decision. Now it’s a legal decision.”
But you can’t turn back the clock. The administration’s bogus executive privilege shield has had a widespread effect in a number of areas, including man hours and court time not to mention the legal costs of a nonprofit watchdog dedicated to exposing government corruption. A legal mind, likely at the highest level of the DOJ, considered the executive privilege claim in this case and finally determined that it had no merit. There was no formal announcement of the change, just a covert omission in the correspondence confirming executive privilege will no longer be exerted in Fast and Furious record litigation after two years.
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