With the House of Representatives poised to hold Attorney General Eric Holder in contempt, President Obama has granted Holder’s request to assert executive privilege in refusing to turn over documents to Congress related to the Fast and Furious scandal. This won’t insulate Holder from being held in contempt. Rather, the White House presumably hopes the assertion will improve Holder’s position if/when his dispute with the House reaches the judicial system.
In requesting that Obama assert executive privilege, Holder said he is “very concerned that the compelled production to Congress of internal Executive Branch documents generated in the course of the deliberative process concerning its response to congressional oversight would have significant and damaging consequences.” This, he added, “would raise substantial separation of powers concerns and potentially create an imbalance in the relationship” between Congress and the White House.”
Holder has reason to be concerned. Rep. Issa’s Committee wants to find out whether, as part of its “deliberative process,” the Department of Justice engaged in a cover-up, including knowingly making false statements to the Commmittee, about the scandalous Fast and Furious program. To the extent that DOJ is discovered through its own documents to have done so, Holder and the administration would face significant and damaging consequences.
Whether these consequences and concerns form the basis for a valid assertion of executive privilege is another matter. I’m no expert on the subject, nor do I know all of the ins-and-outs of the dispute between Holder and Issa’s Committee. However, when Congress has a sound basis for believing that the Executive branch lied to it over material matters as part of a coverup in the course of a legitimate congressional oversight investigation, regard for a proper balance in the relationship between Congress and the Executive argues strongly in favor of enabling Congress to obtain all documents relevant to the coverup, including those generated during the process through which the cover-up is reasonably believed to have occurred.
That appears to be the situation here.