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Judicial Watch, Inc. is a conservative, non-partisan educational foundation, which promotes transparency, accountability and integrity in government, politics and the law.

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Corruption Chronicles

Oops! Obama Realizes Exec. Privilege not Legal to Hide Fast, Furious Docs

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 presidentā€™s trusted senior advisor, Valerie Jarrett, was a key player in the Fast and Furious cover-up and that Obama exerted executive privilege for Holderā€™s wife and mother to conceal emails with the Attorney General involving the operation.

Executive privilege has been the administrationā€™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 JWā€™s cases: ā€œConsistent with what the Department of Justice (ā€œDepartmentā€) 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.ā€

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. Hereā€™s why, according to JW Attorney Michael Bekesha, lead counsel on the Fast and Furious cases; the administration realized it didnā€™t have a case for executive privilege. So, why claim it in the first place? ā€œWhen the scandal hit, they had to figure out a way to withhold records,ā€ Bekesha said. ā€œIt was a political decision and itā€™s no longer a political decision. Now itā€™s a legal decision.ā€

But you canā€™t turn back the clock. The administrationā€™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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