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Two sides circle warily in legal clash over Fast and Furious

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White House spokesman Jay Carney speaks June 21, 2012, during his daily news briefing at the White House. (Associated Press)

As the House of Representatives moved closer to a vote to hold Attorney General Eric H. Holder Jr. in contempt in the clash over the probe into the Fast and Furious affair, the two sides Thursday were still seeking a deal short of all-out constitutional warfare.

With President Obama having asserted executive privilege to block congressional investigators and the White House and congressional Republicans having staked out sharply clashing opening arguments, there were signs the real legal wrangling could begin.

White House spokesman Jay Carney mixed offers to work for an agreement with comments dismissing the House probe into the botched Justice Department gunrunning operation on the Mexico border as an “election-year fishing expedition.”

At the same time, “I can tell you we certainly would like to resolve this if there is a good-faith desire to resolve this on the part of House Republicans,” Mr. Carney told reporters Thursday.

A day after Mr. Obama claimed executive privilege over some Justice Department documents sought by House Republicans, Mr. Carney described the probe as a “politically motivated, taxpayer-funded, election-year fishing expedition” and “an attempt to score political points.”

But House Speaker John A. Boehner, Ohio Republican, said Mr. Obama’s use of executive privilege in his administration’s refusal to turn over documents was proof the White House is involved in a cover-up.

“The decision to invoke executive privilege is an admission that White House officials were involved in decisions that misled the Congress and have covered up the truth,” Mr. Boehner told reporters. “So what is the Obama administration hiding in Fast and Furious?”

Mr. Holder, in Copenhagen for meetings with European Union officials, told reporters he still believes “the possibility still exists that” a compromise can be reached.

“I think the House leadership has to consider now what they will do, so we’ll see how it works out,” he said.

Legal experts said that all that sound and fury in Washington and the threat of a showdown between the two branches may signify little more than legal positioning at this point.

“Since there is no realistic process for enforcement of these [contempt] subpoenas, it is really just a shouting match between the branches,” said Stan Brand, a former House counsel who often represents members of Congress in legal matters.

An option for House Republicans serious about holding Mr. Holder in contempt for refusing to comply with subpoenas would be to pass a resolution authorizing a civil suit in district court, as Democrats did against White House counsel Harriet Miers during the controversy over the George W. Bush administration’s firings of a number of U.S. attorneys.

“The problem with that is it’s a long arduous and unpredictable process that will take it off the front page for two years,” Mr. Brand said.

During the year-and-a half long investigation by the Oversight and Government Reform Committee, the Justice Department turned over 7,600 documents about details of Operation Fast and Furious. But because the department initially denied and then admitted it used a risky investigative technique known as “gun-walking,” the committee has turned its attention to how the Justice Department responded to the investigation. The additional documents it seeks are about that topic.

Mr. Carney insisted the attorney general has made repeated good-faith efforts to comply with the House committee’s investigation, including testifying eight times, and that every document relating specifically to the gunrunning operation itself “has long since been provided.” He said that includes any documents that might show whether anyone at the White House knew about Fast and Furious before it was disclosed publicly. Mr. Carney could not provide an estimate of how many pages are involved.

The White House spokesman said the president asserted executive privilege to maintain the executive branch’s independence, which he said has been done by administrations of both parties going back at least 30 years.

“This is entirely about principle,” Mr. Carney said. “Our assertions are consistent with those of prior administrations. The issue here is about after-the-fact, internal documents that have to do with the executive branch’s ability” to respond to congressional and media inquiries.

Republicans rejected the White House’s legal interpretation of the president’s need to assert executive privilege, the first time Mr. Obama has done so.

“Is the president asserting the presidential communication privilege, which applies only to documents involving communications with the White House?” asked Sen. Chuck Grassley of Iowa, the ranking Republican on the Judiciary Committee. “If so, then the Justice Department should turn over the vast majority of the documents, which would not be protected by that privilege.”

Mr. Boehner called the administration’s refusal to cooperate fully with a committee subpoena “a very serious matter.”

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About the Author

Dave Boyer

Dave Boyer is a White House correspondent for The Washington Times. A native of Allentown, Pa., Boyer worked for the Philadelphia Inquirer from 2002 to 2011 and also has covered Congress for the Times. He is a graduate of Penn State University. Boyer can be reached at dboyer@washingtontimes.com.

Susan Crabtree

Susan Crabtree is an award-winning investigative reporter with more than 15 years of reporting experience in Washington, D.C. Her reporting about bribery, corruption and conflict-of-interest issues on Capitol Hill has led to several FBI and ethics investigations, as well as consequences for members within their caucuses and at the ballot box. Susan can be reached at scrabtree@washingtontimes.com.

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