Obama Administration’s Highest Skill: Stonewalling

As of September 2011, it was estimated that around 300 Mexicans had been killed or wounded with guns smuggled to Mexican drug cartels by the Obama administration in the Fast and Furious operation. That number has probably doubled, at least, since then. If so, it would not be far off from the 800 civilians–many of them in fact Hamas terrorists–who have been killed in the fighting in Gaza. It is striking to compare the level of press interest in the Gaza conflict with that devoted to Fast and Furious.

How does the scandal-ridden Obama administration keep getting away with it? Partly, of course, the explanation is that most reporters and editors are Democratic Party activists. But there is more to the story than that: the Obama administration has perfected the art of stonewalling. In the case of Fast and Furious, Darrell Issa’s House committee tried to investigate the scandal, but the Department of Justice stiffed the committee in its response to the committee’s subpoena, asserting executive privilege so indiscriminately that it was impossible to answer basic questions about the gun-running program.

We wrote extensively about the administration’s claim of executive privilege at the time. In this June 2012 post, I argued that Obama’s assertion of executive privilege was “frivolous,” based on the controlling federal case law. I also wrote:

Holder’s letter is a remarkable document. Viewed from a strictly technical standpoint, it is a terrible piece of legal work. Its arguments are weak at best; in some cases, they are so frivolous as to invite the imposition of sanctions if they were asserted in court. I will explain why momentarily, but first this observation: if an opposing party requests documents that plainly are protected by a privilege, a lawyer will routinely assert the privilege, on principle, even though there is nothing hurtful to his case in those documents. On the other hand, a lawyer will not assert a lousy claim of privilege unless he badly wants to keep the documents in question out of the opponent’s hands because of their damaging nature. If I am correct that the administration’s assertion of executive privilege is baseless, it is reasonable to infer that the documents, if made public, would be highly damaging to President Obama, Attorney General Holder, or other senior administration officials.

The House committee sued to enforce its subpoena, but, three years after the subpoena was issued, that case is bogged down in court. Enter Judicial Watch: that organization served a Freedom of Information Act request on DOJ for the documents as to which it had claimed executive privilege in response to the Congressional subpoena. When DOJ denied that request, Judicial Watch filed suit. But that lawsuit was stayed, pending developments in the House committee’s case.

On July 18, District Judge John Bates granted Judicial Watch’s motion to lift the stay. He also ordered the Department of Justice to produce an itemized descriptions of the documents as to which it is asserting privileges in response to the FOIA request. This list evidently will be similar to a privilege log, the production of which is standard practice in civil litigation. In principle, the descriptions should give Judicial Watch the opportunity to challenge privileges as to documents where it is hard to see how a privilege could apply. It sounds as if there could be quite a few of those; Judge Bates notes that DOJ is claiming a “congressional response work-product” privilege, which has never “been expressly recognized by any court.” I take it that a “congressional response work-product” document would be one where DOJ officials are scheming as to how they can stonewall the House committee.

The wheels of justice, it is truly said, grind slowly. DOJ has until October 1 to produce its itemized document list. Then a briefing schedule will be set, and Judge Bates presumably will rule on whether various documents need to be produced some time in 2015, unless such a ruling has already been made, by then, in the House committee’s case. The bottom line is that the Obama administration has successfully run out the clock on Fast and Furious, which has long been deemed “old news” by those who decide what goes on television and in the newspapers. By the time incriminating documents are finally dragged out of the Obama administration, only obsessives and historians will still care.

It could be, too, that the content of the documents that are finally produced may be disappointing. For purposes of the House’s contempt resolution, the subpoena was narrowed to DOJ “documents from after February 4, 2011, related to the Department’s response to Congress.” It is not clear to me whether the scope of the current litigation is equally narrow; if so, the overwhelming majority of documents that could shed light on Fast and Furious will remain secret no matter the outcome of the two lawsuits.

Here is Judge Bates’s order, for those who may find it interesting. The issues are technical, but the well-informed reader can read between the lines:


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