Fast and Furious and Increasingly Curious

It took some dramatics to actually get "Fast and Furious" on the front pages, but it's there now:

A House panel voted Wednesday to place Attorney General Eric Holder in contempt of Congress for his failure to comply with a subpoena, defying an assertion of executive privilege from President Obama.

The House Oversight and Government Reform Committee, led by Republican Chairman Darrell Issa (Calif.), approved a resolution along party lines to place Holder in contempt after battling him for months over access to internal agency documents about the gun-tracking operation known as "Fast and Furious."

The claim of executive privilege really surprised me, because it wouldn't seem to be germane. The claim all along is that the White House has not had any involvement in the matter beyond whatever is happening at the Justice Department. It certainly got Charles Grassley to raise an eyebrow:

Obama has denied knowledge of Fast and Furious, but Sen. Chuck Grassley (R-Iowa), the ranking member of the Senate Judiciary Committee, said Obama's assertion of executive privilege raises "monumental questions" about whether the White House was involved in the authorization of or the fallout from the botched operation.

"How can the president assert executive privilege if there was no White House involvement? How can the president exert executive privilege over documents he's supposedly never seen?" Grassley said in a statement. "Is something very big being hidden to go to this extreme?"

We don't really know the answer to that, but the claim of executive privilege certainly ups the ante on this matter. In her blog for the Washington Post, Jennifer Rubin explains the side effects, using a figure that Democrats might remember:

But we can now see how Obama has come full circle. As a senator he decried signing statements and invocation of executive privilege, as president he’s become the quintessential imperial president complete with czars, harassment of opponents’ donors and ham-handed efforts to bully the Supreme Court on Citizens United and then Obamacare.

John Yoo, who is second to none when it comes to defending the executive branch, told me this afternoon: “Holder is a gift that keeps on giving — for congressional Republicans. He is bringing a unique combination of political ineptness and constitutional myopia. Politically, he is sustaining a story of law enforcement incompetence that he could bring to a quick end by providing the Hill with documents that bear no national security implications (unlike the Obama administration leaks about our counter-terrorism programs).”

On the law Yoo commented, “Legally, he has given the Obama White House bad advice on the scope of executive privilege, which the Supreme Court in Nixon made clear is centered on the president’s right to discuss the most sensitive national security, military and diplomatic matters with his aides. Either the White House is admitting that President Obama was involved in the ‘Fast and Furious’ controversy (which seems hard to believe), or they are seeking to claim executive privilege to mere discussion of low-level staff with the Attorney General, which the Constitution does not recognize.”

When John Yoo thinks you're overreaching. . . .

It may not matter in the end that much. You might recall that in 2008, the Bush administration was battling Congress and found a couple of aides in contempt:

No congressional committee has held an executive branch official in contempt of Congress since July 2008, when the Democrat-led House Judiciary Committee found Karl Rove, the former adviser to President George W. Bush, in contempt over the alleged politicization of U.S. attorneys’ offices.

The resolution was never taken up by the full House, though two other Bush officials, former counsel Harriet E. Miers and former Chief of Staff Joshua B. Bolten, were held in contempt by the chamber earlier in 2008, also in connection with the U.S. attorneys scandal.

After Miers and Bolten were found in contempt by the Democrat-led House in February 2008, House leaders asked the Justice Department to prosecute them. Then-Attorney General Michael B. Mukasey refused, and Democrats turned to the courts to try to obtain more information from the two aides.

A trial judge sided with the House, but the dispute eventually subsided as the Bush administration left office and the Obama administration took over.

Two points worth making:

• There's a fundamental difference in importance between the two investigations. No one seriously disputes that a president has a right to fire any U.S. attorney at any time, for any reason, because they are political appointees. In Fast and Furious, there is actual wrongdoing and a body count.
• There is a chance the dispute will subside if Obama is defeated in November, because it would be my guess that Mitt Romney wouldn't want to pursue the matter any further. And why do you suppose that is? Back to Rubin:

Principled Democrats who may soon face a Romney administration had better pipe up. Otherwise the precedent will be there for vast expansion of executive power and squashing of Congress’s proper role in our system of government.

Exactly right. This is the reason that I've always had misgivings about the Patriot Act. When you are in power, you should be careful not to claim any power that your political opponents would then be able to use against you when you are out of power.

My guess is that the documents that Congressman Issa is seeking are embarrassing as hell to Holder and to the administration. I don't know that there's any straight-up criminal activity involved and I'd actually be surprised if there were. But as we've learned over and over, the coverup is always worse than the crime. Unless there's something in those documents that implicates the administration in criminal activity, it would be a lot better for everyone if Holder just forked over the documents. That he refuses to do so makes the matter a lot more problematic.