Monday, November 18, 2013


The Obama administration is as transparent as the blacked-out papers the Justice Department sends in response to congressional inquiries into the Fast and Furious gunrunning scandal. Attorney General Eric H. Holder Jr. continues his defiance of the House of Representatives, which found him in contempt last year for his refusal to hand over readable documents that could explain why Mr. Holder and his department lied to Congress about the sale of guns to drug kingpins in Mexico.

The department asked the U.S. District Court for the District of Columbia to stand aside while the U.S. Court of Appeals delivers a “definitive resolution” of whether executive privilege applies to documents that don’t, as far as anybody knows, involve advice provided to the president himself. A president cannot assert executive privilege in this way without recalling President Nixon’s attempt to block a request for audio recordings and papers related to the Watergate scandal. In 1974, the Supreme Court unanimously ordered production of the tapes.

“No court has ever held that ‘executive privilege’ extends anywhere near as far as the attorney general here contends that it does,” argued Kerry W. Kircher, the general counsel for the House of Representatives. Granting the president a power to declare the “work product” of any public employee off-limits with a wave of his hand would enable the White House to shut down any congressional investigation.

Many of President Obama’s own allies are appalled by Mr. Holder’s conduct. Only 67 of the 200 House Democrats rallied to the attorney general’s defense when he was held in contempt of Congress last year. Rather than do what he knows he should, he instructs the Justice Department to erect as many legal hurdles as it can to delay the inevitable.

Exhibit A in the case is a letter from an assistant attorney general to Sen. Chuck Grassley of Iowa in February 2011 claiming that “the allegation … that [the Bureau of Alcohol, Tobacco, Firearms and Explosives] ‘sanctioned’ or otherwise knowingly allowed the sale of assault weapons to a straw purchaser who then transported them into Mexico is false.” Ten months later, the department “withdrew” this letter. The facts, which had leaked through the Washington sieve, were no longer “operative,” as a spokesman for Nixon once said of inconvenient Watergate facts.

Kenneth E. Melson, ATF’s then-acting director, said in a 2011 interview that the Justice Department’s arguments were not about preserving constitutional prerogatives, but about avoiding blame. “It appears thoroughly to us,” said Mr. Melson, “that the department is really trying to figure out a way to push the information away from their political appointees at the department.”

With 10,000 lawyers, the Justice Department will have no trouble devising legal novelties to keep sand in the court’s wheels well into next year. But eventually there will be no more briefs to file, and the day of reckoning will be at hand.

Rather than delay the inevitable, Mr. Obama ought to live up to his campaign promise to provide transparency, and order Mr. Holder to do the right thing, and produce the documents.

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