MAY 22, 2014
Can a federal agency trying to cover up wrongdoing lawfully withhold documents under executive privilege—reserved for the president of the United States—when the records don’t even involve the commander-in-chief?
That’s the question being argued before a federal court in Washington D.C. and the ruling could have a widespread impact on how government unscrupulously hides information from the public as well as Congress. The feud involves a congressional committee investigating a disastrous Obama administration experiment that allowed Mexican drug traffickers to obtain U.S.-sold weapons that later ended up in a multitude of crime scenes, including the murder of a Border Patrol agent.
Run by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), which works under the Department of Justice (DOJ), the secret operation was known as Fast and Furious and it 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 used in violent crimes on both sides of the border. High-ranking officials in the Obama administration, including Attorney General Eric Holder who heads the DOJ, insist they knew nothing about the reckless operation.
Judicial Watch has sued the DOJ for records involving Fast and Furious and has been repeatedly stonewalled by the administration. In fact, last year the DOJ filed a motion to indefinitely delay consideration of JW’s Freedom of Information Act (FOIA) lawsuit seeking access to Fast and Furious records withheld from Congress by President Obama under executive privilege. A congressional panel investigating the matter, the House Oversight and Government Reform Committee, has also been stonewalled and forced to take legal action.
The House committee duked it out with the DOJ in federal court this month, arguing before a D.C. Circuit judge that executive privilege doesn’t apply in this case because the documents it is seeking don’t even involve communications with the president or the performance of his core constitutional functions. Amusingly, the DOJ attorney representing the agency countered that if the records were requested under FOIA (as Judicial Watch has done), they would most likely be subject to disclosure. However, because Congress requested the records, the DOJ lawyer argued, the standard is somehow different and the information essentially doesn’t have to be handed over.
It’s an insane logic and an obvious stall tactic since the DOJ clearly has no intention of releasing what is most likely very damaging information to anyone, not even Congress, and certainly not to a government watchdog like Judicial Watch. Remember that the agency filed a motion, which JW has appealed, to indefinitely delay even considering our Fast and Furious FOIA request. JW is used to these sorts of stall tactics from the government but this seems to be a new level of stonewalling that could very well be interpreted as a cover-up.
Recently, we saw the success of FOIA vs. Congress involving explosive Benghazi records uncovered by JW. The Obama administration essentially blew Congress off, failing to provide crucial documents about the 2012 terrorist attack on the U.S. Special Mission in Libya. Through a FOIA lawsuit, JW was able to obtain the records that show the White House was directly involved in misleading the public about the attack to protect President Obama’s image. The administration specifically withheld the records from Congress, but turned them over the JW because a federal court ordered it. This proves the importance of groups like JW because, let’s face it, when Congress asks any agency for records, it’s political theater with no official system in place to assure the information is handed over.
JW Attorney Michael Bekesha, who’s handling JW’s Fast and Furious lawsuit, was in court during the recent hearing between the DOJ and the House investigative committee. For those who find the lengthy transcript too boring, here’s a layman’s synopsis from Bekesha: “They basically argued that, in the olden days, when Congress asked for documents and they said ‘no,’ they just went away.” That isn’t happening here.” How convenient that a government agency can swat away a congressional request for documents as if it were an annoying fly.
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