US Attorney General Holder held in contempt of Congress
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US Attorney General Eric Holder has been held in contempt of Congress for refusing to hand over a set of files on a failed gun-running investigation.

In a 255-67 vote, 17 Democrats joined with the House of Representatives' Republican majority.
Mr Holder is the first sitting attorney general and US presidential cabinet member to be held in contempt.
The White House has refused to hand over files outlining how problems with Fast and Furious emerged.
The operation saw US agents lose track of hundreds of illegal guns sold in Arizona and allowed into Mexico to target dealers.

Two of the weapons were found in December 2010 at scene of a US border agent's murder. Fast and Furious ended in early 2011.

'Political game'

Mr Holder told reporters that the move was "misguided" and said lawmakers had been circulating "truly absurd" conspiracy theories.

"It will not distract me from the important tasks that are our responsibility," Mr Holder said.
The House also voted 258-95 to ask the courts to force Mr Holder to turn over the documents.
Many Democratic lawmakers, including the Congressional Black Caucus and Democratic leader Nancy Pelosi, walked out of the chamber in protest on Thursday.

"We don't want to play a part in this political game," Democratic Representative Gregory Meeks said.
The roots of the current Congressional investigation began on 4 February 2011 when the justice department sent lawmakers a letter denying they had sanctioned or otherwise knew about guns illegally ending up Mexico.

The department withdrew the letter 10 months later, acknowledging the operation had allowed guns across the border.

Led by Republican Darrell Issa, the House Oversight Committee subpoenaed documents for the 10-month period.

The Department of Justice says it has denied access to the files because they contain information that could affect ongoing criminal investigations.

Demand for answers

Mr Issa did not accept an offer of files and a briefing on the operation, saying the department needed to hand over all the documents requested.

The justice department sent to the House Oversight Committee more than 7,000 documents relating to Fast and Furious, and to a similar operation that took place during the George W Bush administration.
Last week, the White House raised the stakes by announcing it would exert executive privilege to protect the documents in question from subpeona.

The National Rifle Association has told House members that it will include the contempt vote in ratings the lobby group uses to show how lawmakers align with its interests.

Dan Pfeiffer, White House communications director, called the vote a "transparently political stunt" that happened despite justice department efforts to accommodate Congress.
Republican leaders defended the vote. House Speaker John Boehner said during the House debate that "no justice department is above the law".

"A man died serving his country and we have a right to know what the federal government's hand was in that," said Republican lawmaker Rich Nugent.

As Holder Faces Contempt Vote, White House Asserts Executive Privilege
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Minutes before Attorney General Eric Holder Jr. faced a contempt of Congress vote this morning for not turning over documents related to the botched Fast and Furious gun-trafficking operation, the White House claimed executive privilege over the documents.

The assertion injected last-minute uncertainty and chaos into hearing of the House Oversight and Government Reform Committee, but Chairman Rep. Darrell Issa (R-Calif.) pushed forward, saying: "This untimely assertion by the Justice Department falls short of any reason to delay today's proceedings."

The Ranking Minority Member Rep. Elijah Cummings (D-Md.) urged the committee to wait on the vote, saying that he felt Issa was not interested in a resolution, only in scoring political points. "I believe we need to study this and make sure we understand what the president is asserting here," Cummings said.

But the contempt vote is moving forward this morning. Already, members of Congress and their staffs are scrambling to understand the ramifications of President Barack Obama's assertions of executive privilege.

"The assertion of executive privilege raises monumental questions," Sen. Chuck Grassley (R-Iowa) said in a written statement. "How can the President assert executive privilege if there was no White House involvement? How can the President exert executive privilege over documents he's supposedly never seen? Is something very big being hidden to go to this extreme?"

In an email response, White House spokesman Eric Schultz pointed out that former President George W. Bush asserted executive privilege six times, former President Bill Clinton 14 times, and both "protected the same category of documents we’re protecting today."

Those documents are after-the-fact internal executive branch materials responding to congressional and media inquiries, and in this case from the Justice Department, Schultz said.

At the ongoing House hearing, however, the accusations of politics were flying.

Rep. John Mica (R-Fla.) said in remarks the White House assertion of executive privilege is an attempt to "thwart" the Fast and Furious investigation. "This is a very sad day for the United States of America, when the president would engage himself at the last minute to assert the executive privilege," Mica said.

The hearing started today after last-minute negotiations between Issa and Holder ended Tuesday night without a resolution. Holder had agreed to turn over some documents and said DOJ was willing to make an "extraordinary accommodation" of holding a briefing with the lawmakers.

Issa said he went into the meeting Tuesday with Holder with the "full intent" of a likely postponement of the contempt proceedings. "We did have people here all night with hopes that those documents would arrive," Issa said.

But Issa said today at the beginning of the contempt hearing today that Holder would only agree turn over documents if that meant the Oversight Committee's investigation would end. The Department of Justice still has not turned over key documents subpoenaed 18 months ago as part of an inquiry into the botched Fast and Furious gun-smuggling investigation, Issa said.

Issa said that ending the investigation without seeing what was in the documents was not a solution he could accept. Grassley agreed, and said he was "not going to buy a pig in a poke."

Issa and Grassley are seeking documents explaining how Holder and the department learned of controversial tactics used in Fast and Furious, and how that understanding "evolved" after Feb. 4, 2011, the day the department gave incorrect information to Congress about the investigation that it later rescinded.

The legal basis for the President's assertion of executive privilege is set forth in a letter to the President from Holder, according to a letter to Issa from Deputy Attorney General James Cole.

"In brief, the compelled production to Congress of these internal Executive Branch documents generated in the course of the deliberative process concerning the Department's response to congressional oversight and related media inquiries would have significant, damaging consequences," Cole's letter states. "As I explained at our meeting yesterday, it would inhibit the candor of such Executive Branch deliberations in the future and significantly impair the Executive Branch's ability to respond independently and effectively to congressional oversight.

"Such compelled disclosure would be inconsistent with the separation of powers established in the Constitution and would potentially create an imbalance in the relationship between these two co-equal branches of the Government," Cole's letter states.

Posted by Todd Ruger on June 20, 2012 at 11:19 AM in Current Affairs, Justice Department, Points of
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COMMENTS

It appears that Mr. Holder learned his ethics from Mr. Clinton and Mr. Nixon. Nice to see the moral equivalency. He has shown himself time and again as ethically-challenged. The only conclusion one can draw is that the President knew the Justice Department was lying to Congress, and it knew it early, but allowed it to cover up its own malfeasance.
Makes one yearn for the integrity of John Mitchell and the competence of Jimmy Carter.

On Fast and Furious, Obama invokes 'executive privilege.' What's that?
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Facing a contempt vote, Attorney General Eric Holder urged Obama to invoke 'executive privilege' to avoid turning over documents to Congress. To be valid, the claim must bear on a core power of the presidency.

By Peter Grier, Staff writer / June 20, 2012

Can he do that? What’s executive privilege, exactly?

Well, executive privilege is not mentioned in the Constitution, per se. But since the founding of the republic, presidents have, on occasion, claimed a right to withhold information from Congress in the name of confidentiality. Their theory is that, without this right, it would be much more difficult for US chief executives to get the unvarnished advice they need to run the nation.

George Washington, for instance, in 1796 refused to let the House of Representatives see presidential papers dealing with negotiations over the controversial Jay Treaty with Great Britain. Some years later, Andrew Jackson said Congress couldn’t have documents detailing negotiations over the shape of Maine.

In the 1950s, President Eisenhower refused to allow his attorney general to testify before the McCarthy-era House Un-American Activities Committee. It was at this point that the concept got the name “executive privilege” and expanded to cover more than direct presidential papers.

Watergate gave executive privilege more legal heft. President Nixon asserted that he had broad powers to withhold from Congress executive branch documents, testimony from officials, and (most crucially) his White House tapes. Federal judges ruled that presidents did indeed have a presumption of executive privilege. But they also held that this power isn’t limitless. Executive privilege could be overruled if Congress showed an overriding public need for the information. In Nixon’s case, that’s what happened.

According to an authoritative Congressional Research Service history of executive privilege, at least three important elements must be present for a legally correct assertion of the power. First, the communication the president wishes to withhold must bear on a core power of the presidency, such as the right to grant pardons or conduct law enforcement. Second, the communication must have come from or to the president or a close White House adviser. Third, the communication can’t contain info so unique that investigators can’t figure it out by looking elsewhere.

Since 1980 US presidents have claimed executive privilege 25 times in various circumstances. Ronald Reagan did it three times. Bill Clinton? Fourteen. George W. Bush asserted it six times.

In the 2009-10 “Fast and Furious” case, Arizona-based agents of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives were trying to build a case against smugglers suspected of supplying violent Mexican drug cartels with weapons. The US agents allowed these suspects to purchase upwards of 2,000 guns without intervention. Some of these weapons were later implicated in a 2010 shootout that killed a federal border agent.

In February 2011, the Justice Department sent Congress a letter stating that top officials had only recently learned about the “Fast and Furious” operation. Justice officials later withdrew that letter as inaccurate. GOP members of the House Oversight and Government Reform Committee now want documents pertaining to the reasons for that withdrawal. It’s this request that the administration is attempting to block with its executive privilege claim.

In a letter to Mr. Obama asking that he assert executive privilege in this case, Attorney General Eric Holder wrote that releasing the papers in question would “inhibit the candor of executive branch deliberations in the future and significantly impair the ability of the executive branch to respond independently and effectively to congressional oversight."

Republicans denounced the action. House Speaker John Boehner questioned whether the move means that the White House itself, not just the Department of Justice, was involved in “Fast and Furious” decisions.

“The administration has always insisted that wasn’t the case. Were they lying, or are they now bending the law to hide the truth?” said Mr. Boehner’s press secretary Brendan Buck.

Obama’s naked lawlessness
Halting deportations, rewriting the law
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Charles Krauthammer, NEW YORK DAILY NEWS, Thursday, June 21, 2012, 8:00 PM

With respect to the notion that I can just suspend deportations [of immigrants brought here illegally as children\] through executive order, that’s just not the case, because there are laws on the books that Congress has passed.”

— President Obama, March 28, 2011

Those laws remain on the books. They haven’t changed. Yet Obama last week suspended these very deportations — granting infinitely renewable “deferred action” with attendant work permits — thereby unilaterally rewriting the law. And doing precisely what he admits he is barred from doing.

Obama had tried to change the law. In late 2010, he asked Congress to pass the Dream Act, which offered a path to citizenship for hundreds of thousands of young illegal immigrants. Congress refused.

When subsequently pressed by Hispanic groups to simply implement the law by executive action, Obama explained that it would be illegal. “Now, I know some people want me to bypass Congress and change the laws on my own. . . . But that’s not how our system works. That’s not how our democracy functions. That’s not how our Constitution is written.”

That was then. Now he’s gone and done it anyway. It’s obvious why. He needs a big Hispanic vote and this is the perfect pander. Who will call him on it? A supine press? Congressional Democrats? Nothing like an upcoming election to temper their Bush 43-era zeal for defending Congress’ exclusive Article I power to legislate.

With a single Homeland Security Department memo, the immigration laws no longer apply to 800,000 people. By what justification? Prosecutorial discretion, says Janet Napolitano.

This is utter nonsense. Prosecutorial discretion is the application on a case-by-case basis of considerations of extreme and extenuating circumstances. No one is going to deport, say, a 29-year-old illegal immigrant whose parents had just died in some ghastly accident and who is the sole support for a disabled younger sister and ailing granny. That’s what prosecutorial discretion is for.

The Napolitano memo is nothing of the sort. It’s the unilateral creation of a new category of persons — a class of 800,000 — who, regardless of individual circumstance , are hereby exempt from current law so long as they meet certain criteria.

This is not discretion. This is a fundamental rewriting of the law.

Imagine: A Republican President submits to Congress a bill abolishing the capital gains tax. Congress rejects it. The President then orders the IRS to stop collecting capital gains taxes, and declares that anyone refusing to pay them will suffer no penalty, no sanction whatsoever. (Analogy first suggested by law professor John Yoo.)

It would be a scandal, a constitutional crisis, a cause for impeachment. Why? Because unlike, for example, war powers, this is not an area of perpetual executive-legislative territorial contention.

Nor is cap-gains, like the judicial status of unlawful enemy combatants, an area where the law is silent or ambiguous. Capital gains is straightforward tax law. Just as Obama’s bombshell amnesty-by-fiat is a subversion of straightforward immigration law.

It is shameful that congressional Democrats should be applauding such a brazen end-run. Of course it’s smart politics. It divides Republicans, rallies the Hispanic vote and pre-empts Marco Rubio’s attempt to hammer out an acceptable legislative compromise. Very clever. But, by Obama’s own admission, it is naked lawlessness.

As for policy, I sympathize with the obvious humanitarian motives of the Dream Act. But two important considerations are overlooked in concentrating exclusively on the Dream Act poster child, the valedictorian who rescues kittens from trees.

First, offering potential illegal immigrants the prospect that, if they can successfully hide long enough, their children will one day freely enjoy the bounties of American life creates a huge incentive for more illegal immigration.

Second, the case for compassion and fairness is hardly as clear-cut as advertised. What about those who languish for years in godforsaken countries awaiting legal admission to America? Their scrupulousness about the law could easily cost their children the American future that illegal immigrants will have secured for theirs.

But whatever our honest disagreements , what holds us together is a shared allegiance to our constitutional order.

As Obama himself argued in rejecting the executive action he has now undertaken, “America is a nation of laws, which means I, as the President, am obligated to enforce the law. I don’t have a choice about that.”

Except, apparently, when violating that solemn obligation serves his reelection needs.

letters@charleskrauthammer.com