OCTOBER 23, 2014
Freedom of Information Act Lawsuit Reveals Information Long Withheld from Congress under Unprecedented Obama Executive Privilege Claim
New Legal Document Reveals President Obama Is Asserting Executive Privilege over Fast and Furious Emails between Attorney General Holder and Holder’s Wife
(Washington, DC) – Judicial Watch announced today it received from the Obama Department of Justice (DOJ) a “Vaughn index” describing controversial Operation Fast and Furious records. The document was produced as the result of a court order in the group’s September 2012 Freedom of Information Act (FOIA) lawsuit (Judicial Watch v. Department of Justice (No. 1:12-cv-01510)).
Typically, a Vaughn index must: (1) identify each record withheld; (2) state the statutory exemption claimed; and (3) explain how disclosure would damage the interests protected by the claimed exemption. A federal court had ordered the production over the objections of the Obama DOJ. The document details the Attorney General Holder’s personal involvement in managing the Justice Department’s strategy on media and Congressional investigations into the Fast and Furious scandal. Notably, the document discloses that emails between Attorney General Holder and his wife Sharon Malone – and his mother – are being withheld under claims of executive privilege and the deliberative process privilege.
This is the first time that the Obama administration has provided a detailed listing of all records being withheld from Congress and the American people about the deadly Fast and Furious gun running scandal. The 1307-page “draft” Vaughn index was transmitted to Judicial Watch at 8:34 p.m. last night. In its cover letter, the DOJ asserts that all of the responsive records described in the index are “subject to the assertion of executive privilege.” The Vaughn index is 1,307 pages in length and explains 15,662 documents.
Based on a preliminary review of the massive document, Judicial Watch can disclose that the Vaughn index reveals:
- Numerous emails that detail Attorney General Holder’s direct involvement in crafting talking points, the timing of public disclosures, and handling Congressional inquiries in the Fast and Furious matter.
- President Obama has asserted executive privilege over nearly 20 email communications between Holder and his spouse Sharon Malone. The administration also claims that the records are also subject to withholding under the “deliberative process” exemption. This exemption ordinarily exempts from public disclosure records that could chill internal government deliberations.
- Numerous entries detail DOJ’s communications (including those of Eric Holder) concerning the White House about Fast and Furious.
- The scandal required the attention of virtually every top official of the DOJ and the Bureau of Alcohol, Tobacco and Firearms (ATF). Communications to and from the United States Ambassador to Mexico about the Fast and Furious matter are also described.
- Many of the records are already publicly available such as letters from Congress, press clips, and typical agency communications. Ordinarily, these records would, in whole or part, be subject to disclosure under the Freedom of Information Act. Few of the records seem to even implicate presidential decision-making and advice that might be subject to President Obama’s broad and unprecedented executive privilege claim.
On June 28, 2012, Attorney General Eric Holder was held in contempt by the House of Representatives over his refusal to turn over records explaining why the Obama administration may have lied to Congress and refused for months to disclose the truth about the gunrunning operation. It marked the first time in U.S. history that a sitting Attorney General was held in contempt of Congress.
A week before the contempt finding, to protect Holder from criminal prosecution and stave off the contempt vote, President Obama asserted executive privilege over the Fast and Furious records the House Oversight Committee had subpoenaed eight months earlier. Judicial Watch filed its FOIA request two days later. When the DOJ denied that request, Judicial Watch filed a FOIA lawsuit on September 12, 2012. On February 15, 2013, U.S. District Court Judge Bates stayed the case, in part to allow ongoing settlement discussions between the DOJ and the House Committee to continue.
Judicial Watch then obtained a July 18, 2014, ruling by Judge John D. Bates that lifted a lengthy 16-month delay of this open records lawsuit and ordered the production of a Vaughn index by October 1. Judge Bates noted that no court has ever “expressly recognized” President Obama’s unprecedented executive privilege claims in the Fast and Furious matter.
On September 23, Judge Bates then denied the DOJ’s request it be given over an extra month, until November 3, to produce the Vaughn index. As Judge Bates noted: “at best, it means the Department has been slow to react to this Court’s previous [July 18, 2014] Order. At worst, it means the Department has ignored that Order until now.”
Attorney General Eric Holder announced his resignation two days after the court ruling. Judicial Watch asserted it was “no coincidence that Holder’s resignation comes on the heels of another court ruling that the Justice Department must finally cough up information about how Holder’s Justice Department lied to Congress and the American people about the Operation Fast and Furious scandal, for which Eric Holder was held in contempt by the House of Representatives.”
In its FOIA lawsuit, Judicial Watch sought all of the records the Obama White House was withholding from the House of Representatives under its June 20, 2012, executive privilege claims. The House had been separately litigating to obtain the records but had gotten nowhere until after Judge Bates ruled that the DOJ finally had to disclose information to Judicial Watch.
On September 9, U.S. District Court Judge Amy Berman Jackson, citing Judicial Watch’s success, ordered the Justice Department to produce information to Congress by November 3.
Fast and Furious was a DOJ/Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) “gun-running” operation in which the Obama administration reportedly allowed guns to go to Mexican drug cartels hoping they would end up at crime scenes, advancing gun-control policies. Fast and Furious weapons have been implicated in the murder of Border Patrol Agent Brian Terry and hundreds of other innocents in Mexico. Guns from the Fast and Furious scandal are expected to be used in criminal activity on both sides of the U.S.-Mexico border for years to come.
“This document provides key information about the cover-up of Fast and Furious by Attorney General Eric Holder and other high-level officials of the Obama administration. Obama’s executive privilege claims over these records are a fraud and an abuse of his office,” stated Judicial Watch President Tom Fitton. “There is no precedent for President Obama’s Nixonian assertion of executive privilege over these ordinary government agency records. Americans will be astonished that Obama asserted executive privilege over Eric Holder’s emails to his wife about Fast and Furious.
“Once again, Judicial Watch has proven itself more effective than Congress and the establishment media in providing basic oversight of this out-of-control Administration,” added Fitton. “This Fast and Furious document provides dozens of leads for further congressional, media, and even criminal investigations.”
Guns from the Fast and Furious scandal continue to be used in crimes. Just last week, Judicial Watch disclosed that, based on information uncovered through a Judicial Watch public records lawsuit against the City of Phoenix, the U.S. Congress confirmed that an AK 47 rifle used in a July 29, 2013, gang-style assault on an apartment building that left two people wounded was part of the Obama Department of Justice (DOJ) Operation Fast and Furious gunrunning program. An October 16 letter sent from Sen. Charles Grassley (R-IA) and Rep. Darryl Issa (R-CA) to Deputy Attorney General James Cole discloses that “we have learned of another crime gun connected to Fast and Furious. The [Justice] Department did not provide any notice to the Congress or the public about this gun….This lack of transparency about the consequences of Fast and Furious undermines public confidence in law enforcement and gives the impression that the Department is seeking to suppress information and limit its exposure to public scrutiny.”
The Judicial Watch lawsuit for Oversight Committee documents is one of several FOIA lawsuits Judicial Watch has filed in its effort to obtain information concerning the Fast and Furious scandal:
On October 11, 2011, Judicial Watch sued the DOJ and the ATF to obtain all Fast and Furious records submitted to the House Committee on Oversight.
On June 6, 2012, Judicial Watch sued the ATF seeking access to records detailing communications between ATF officials and Kevin O’Reilly, former Obama White House Director of North American Affairs at the U.S. National Security Council.
On September 5, 2013, Judicial Watch sued the DOJ seeking access to all records of communications between DOJ and the Oversight Committee relating to settlement discussions in the Committee’s 2012 contempt of Congress lawsuit against Holder. The contempt citation stemmed from Holder’s refusal to turn over documents to Congress related to the Fast and Furious gunrunning scandal.
On May 28, 2014, Judicial Watch sued the DOJ on behalf of ATF Special Agent John Dodson, who blew the whistle on Operation Fast and Furious and was then subjected to an alleged smear campaign designed to destroy his reputation.