The Fast and Furious Cover-up, Hiding In Plain Sight

The House Oversight and Government Reform Committee has been trying to investigate the Fast and Furious scandal for years, but has been stymied by the Obama administration’s stonewalling. The House committee was willing to narrow its request for Department of Justice documents to an extraordinary degree; ultimately, the committee asked only that the Obama administration produce documents after February 4, 2011, relating to the false letter to Congress that bore that date, and the process by which Eric Holder’s DOJ decided to withdraw that letter. Notwithstanding this narrow scope, the Obama administration has stiffed the House committee for three years, asserting executive privilege over virtually all of the documents encompassed by the committee’s request. We first wrote about DOJ’s privilege claims, which I termed “frivolous,” here.

Independently, Judicial Watch served a Freedom of Information Act request for the same documents that were requested by the House committee. When the Obama administration refused to produce them on the same privilege grounds, Judicial Watch sued. The court finally ordered DOJ to produce a “Vaughn index,” listing the documents being withheld and providing enough information about them to assess the grounds asserted. The administration tried to put that production off until after the election, but the court required that it be produced last week. I made some initial observations about the Vaughn index here, noting that emails between Eric Holder and his wife and mother had been withheld based on the “deliberative process” privilege.

Having had an opportunity to review the index further–it is over 1,300 pages long, and can be downloaded here–it seems to me that it provides a rather detailed picture of the Obama administration’s cover-up of the Fast and Furious scandal.

None, or virtually none, of the documents itemized in the index have anything to do with setting government policy, which is the type of communication the deliberative process privilege is intended to protect. Rather, based on the descriptions given by DOJ’s lawyers, they are all about how the administration will try to spin the Fast and Furious scandal to avoid political damage. If you review the index, you will see what I mean. Here are a few examples.

First, the most explosive aspect of the scandal is the fact that border agent Brian Terry was killed with a Fast and Furious gun. The Obama administration worried a lot about this, not because it wanted to change policies so that similar tragedies would not happen in the future, but rather because it was trying to avoid political fallout. Its concern was “talking points” about Brian Terry. Click to enlarge:

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These are some of the emails between Eric Holder and his wife, Sharon Malone, that allegedly are subject to the deliberative process privilege. On its face, it seems impossible that the privilege could apply, since Ms. Malone is not a member of the executive branch. Again, click to enlarge:

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So on October 6, 2011, Holder and his wife exchanged a series of emails about the “White House statement.” October 6, 2011, was a critical date. News reports had emerged that cast doubt on Holder’s claim that he had only recently learned about the Fast and Furious gun-walking program. Documents came to light that showed he had been briefed on the program far earlier than he stated. On October 6, President Obama responded to this development by expressing his complete faith in Eric Holder and vowing to get to the bottom of the scandal:

“He’s indicated that he was not aware of what was happening in Fast and Furious,” the president said in support of Holder, speaking at a White House news conference Thursday. “Certainly I was not….”

“I have complete confidence in him,” Obama said of Holder. “And I’ve got complete confidence in the process to figure out who, in fact, was responsible for that decision [to launch Fast and Furious] and how it got made.”

It would certainly be interesting to know what Holder told his wife about the president’s statement. For example: “Obama lied through his teeth, but at least he didn’t throw me under the bus!” That probably wasn’t what Holder said, of course, but whatever it was, the Obama administration doesn’t want you to see it.

Here are two more examples, out of literally thousands, of what the Obama administration considers to be protected by the “deliberative process” privilege. This first group of emails were on the same day as Holder’s exchange with his wife. The subject line of each is “Fwd: Holder Received at Least 5 Memos on Fast and Furious.” The purpose of the discussion among DOJ officials is, as usual, how to spin the news to avoid political damage. Each of the communications is described as “Email discussing strategy on responding to media.”

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The following emails are dated May 5, 2011. Again, they were withheld based on the deliberative process privilege. But what were these DOJ officials deliberating? The subject heading is “Re: Fast and Furious,” and each of the emails is described as “Email discussing strategy for response to Congress.”

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Again, the timing is significant. Two days earlier, May 3, Eric Holder had testified on Fast and Furious for the first time, before the House Judiciary Committee. Committee members expressed dissatisfaction with DOJ’s response to that committee’s subpoena and had follow-up questions. On May 5, Darrell Issa wrote a letter asking DOJ to produce promptly all of the documents that had been subpoenaed by his Oversight and Government Reform Committee. In these emails and others, the Obama administration is discussing strategy (their term) for how they should respond to Congress’s ongoing inquiries–how, one could say, to execute a cover-up.

This is, of course, precisely the sort of information that the House Oversight and Government Reform Committee and Judicial Watch have been trying to obtain. The point of the committee’s narrowed subpoena was to determine how the administration made the decision to withdraw the DOJ’s letter of February 4, 2011, which made the critically false assertion that DOJ had not deliberately allowed guns to be transferred to the Mexican drug cartels. Was the mistake made out of ignorance, or did Eric Holder and his minions intentionally lie to Congress?

This is the question that the Obama administration is making it impossible to answer by claiming that the vast majority of relevant documents are privileged. Does the administration’s position have any legal merit? Is it plausible to claim that emails among White House and DOJ personnel on how to manage the politics of Congressional and media inquiries are part of a “deliberative process” that should be protected from public view?

I don’t think so. The purpose and scope of the deliberative process privilege were articulated by the D.C. Circuit Court of Appeals in In re Sealed Case (Espy), 121 F.3d 729 (D.C. Circuit 1997):

The most frequent form of executive privilege raised in the judicial arena is the deliberative process privilege; it allows the government to withhold documents and other materials that would reveal “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.1966), aff’d,384 F.2d 979 (D.C.Cir.1967) … Two requirements are essential to the deliberative process privilege: the material must be predecisional and it must be deliberative. See Army Times Publ’g Co. v. Department of the Air Force, 998 F.2d 1067, 1070 (D.C.Cir.1993); Wolfe, 839 F.2d at 774. Both requirements stem from the privilege’s “ultimate purpose[, which] … is to prevent injury to the quality of agency decisions” by allowing government officials freedom to debate alternative approaches in private.

Is a significant public purpose served by protecting communications of executive branch personnel as they debate how best to stonewall Congress, put off media inquiries and spin news reports? One would think not. The deliberative process privilege does not protect evidence of wrongdoing:

[W]here there is reason to believe the documents sought may shed light on government misconduct, “the privilege is routinely denied,” on the grounds that shielding internal government deliberations in this context does not serve “the public’s interest in honest, effective government.” Texaco Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867, 885 (1st Cir.1995); see also In re Comptroller of the Currency, 967 F.2d at 634 (“the privilege may be overridden where necessary … to ‘shed light on alleged government malfeasance’ ”) (quoting Franklin Nat’l Bank, 478 F.Supp. at 582); Wetlaufer, supra, at 852 n. 25, 855 (listing cases).

That is exactly what we have here. Did the Obama administration deliberately lie to Congress and the American people? This is the question to which Barack Obama evidently does not want us to know the answer.