Written by Tom Fitton
Contempt: JW Sues ATF for Fast and Furious Records
This week marked some huge developments in the “Fast and Furious” scandal that involved the Obama administration’s allowing guns to “walk” across the border into the hands of Mexican drug cartels directly resulting in the death of U.S. Border Patrol Agent Brian Terry. At least 150 Mexicans were murdered by Fast and Furious guns.
On Wednesday, Attorney General Eric Holder was voted in contempt of Congress by the House Committee on Oversight and Government Reform, led by Rep. Darrel Issa (R-CA). The contempt relates to Holder’s steadfast refusal to turn over key documents about the Fast and Furious operation. Next week, assuming the full House votes as planned, Eric Holder is likely to find himself to be the first Attorney General of the United States in history to be found in contempt of Congress. Thecontempt resolution is reproduced below:
Resolved, That Eric H. Holder, Jr., Attorney General of the United States, shall be found to be in contempt of Congress for failure to comply with a congressional subpoena.
Resolved, That pursuant to 2 U.S.C. §§ 192 and 194, the Speaker of the House of Representatives shall certify the report of the Committee on Oversight and Government Reform, detailing the refusal of Eric H. Holder, Jr., Attorney General, U.S. Department of Justice, to produce documents to the Committee on Oversight and Government Reform as directed by subpoena, to the United States Attorney for the District of Columbia, to the end that Mr. Holder be proceeded against in the manner and form provided by law.
Resolved, That the Speaker of the House shall otherwise take all appropriate action to enforce the subpoena.
In an effort to derail the contempt vote, Holder asked the president on Tuesday to do what Obama does best, use the power of the Oval Office to try to shield documents from disclosure. (This despite Obama’s previous statements as a presidential candidate indicating he believed executive privilege is not a good reason to withhold documents from Congress.)
Senator Charles Grassley (R-IA), Ranking Republican on the Senate Judiciary Committee, asked some critical questions after the president intervened: “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?”
In fact, your Judicial Watch litigated a key relevant case on executive privilege against the Bush administration. Judicial Watch sued the Bush Department of Justice (DOJ) to gain access to DOJ documents about the Clinton pardon scandal. The Bush DOJ said that documents prepared by its Office of Pardon Attorney, which is supposed to advise the president on pardons/commutations, were subject to the presidential communication privilege. A lower court agreed. But in a key 2004 ruling against the Bush administration, the Court of Appeals for the District of Columbia Circuit overruled the lower court and said that extending the presidential communications privilege to internal DOJ documents “would be both contrary to executive privilege precedent and considerably undermine the purposes of Freedom of Information (FOIA) to foster openness and accountability in government.” Any internal DOJ documents on Fast and Furious would not seem, under this important precedent, to be covered by any executive privilege.
It is unclear as to what categories of documents Obama is invoking executive privilege. This gamesmanship suggests they know that internal DOJ documents that weren’t solicited and received by the president won’t be protected by executive privilege.
The Obama administration’s assertion of executive privilege seems at odds with court precedent in our pardon case and In re: Sealed (Espy), the two big cases describing the contours the limits of executive privilege. (You will see the In re: Sealedopinion repeatedly cited by the appellate court in its opinion in our pardon case.)
Any attempt to assert deliberative process privilege also won’t work because the courts don’t routinely deny efforts to shield internal government “deliberations” that may shed light on government misconduct.
The scandalous assertion of executive privilege necessarily draws President Obama into this scandal about the murder of a federal law enforcement agent and related Obama administration lies. As Speaker Boehner, who stalled the contempt vote for political reasons, said: “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.”
Of course, the question of the White House’s potential involvement in Fast and Furious has been at the center of Judicial Watch’s investigative efforts.
In fact, on June 6th, before these latest Fast and Furious developments, we filed a Freedom of Information Act (FOIA) lawsuitwith the Obama Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) seeking access to “Operation Fast and Furious” records detailing communications between ATF officials and Kevin O’Reilly, former Obama White House Director of North American Affairs at the U.S. National Security Council.
This is the third lawsuit filed against the Obama administration seeking records related to the Fast and Furious scandal. And here’s what we’re after this time pursuant to our original FOIA request submitted on July 22, 2011:
All records of communication between any official, officer or employee of the Bureau of Alcohol, Tobacco, Firearms and Explosives and Kevin M. O’Reilly, a current or former employee of the U.S. Department of State currently or previously serving as Director of North American Affairs at the U.S. National Security Council.
Why are we interested in this particular White House official?
As reported by CBS News, Fast and Furious documents released by the Obama White House in September 2011 “show extensive communications between then-ATF Special Agent in Charge of the Phoenix office Bill Newell – who led Fast and Furious – and then-White House National Security Staffer Kevin O’Reilly.”
These records included a flow-chart showing the ultimate destinations of the weapons released by the Obama administration. Newell had previously admitted during a congressional hearing that he had indeed shared information regarding the scandal with O’Reilly, but did not provide significant details regarding their discussions.
Rep. Darrell Issa and Sen. Grassley have repeatedly demanded that O’Reilly testify in the matter. Nevertheless, the White House has thus far refused to make O’Reilly, now reportedly stationed in Iraq in a new position with the Obama State Department, available for questioning.
The Obama administration has clammed up on Fast and Furious. We’re having trouble getting almost anything out of them. And this week’s contempt vote shows Congress is having no better luck. The American people deserve to know what White House officials knew and when they knew it. We will continue to fight to hold the Obama administration accountable to the rule of law.
Obama’s concocting of a constitutional crisis over Eric Holder comes on the heels of another constitutional crisis that Obama began last week. Last Friday, President Barack Obama once again exhibited the lawlessness that is the hallmark of his presidency. Politico had the story in an article appropriately entitled, “Obama’s Policy Strategy: Ignore Laws:”
Rather than pushing new laws through a divided Congress to enact his agenda, Obama is relying on federal agencies to ignore, or at least not defend, laws that some of his important supporters — like Hispanic voters and the gay community — don’t like…
…As of Friday, the federal government won’t deport undocumented immigrants under age 30 who came to the United States as children. It is a temporary, de facto implementation of a part of the stalled DREAM Act.
The result: a loud message to Hispanic voters to remember Obama in November.
So Obama couldn’t get this illegal alien amnesty policy passed by Congress and the American people, but he found a way to send a gift to potential illegal alien “voters” just months before Election Day.
Of course, illegal alien amnesty is one key component of the Obama gang’s comprehensive plot to steal the elections.
Not only is the Obama administration allowing illegal aliens to stay in the country through the elections without fear of deportation, in violation of immigration law, he’s also paving the way for them to cast illegal votes by fighting any attempt by state election officials to implement voter integrity provisions such as voter ID laws. (I covered this point in detail last week, and you can click here for the background.)
Now, this “suspended deportation scheme” was once known as “stealth amnesty” because the Obama administration at first tried to impose the policy without attracting the attention of the press and the public. “Nothing to see here,” Obama administration officials repeatedly said, even as they were quietly instructing immigration officials behind the scenes to stop deportation proceedings against illegal aliens, even those convicted of violent crimes.
(Judicial Watch took a leading role in exposing the administration’s stealth amnesty scheme. The Houston Chronicle should also receive a lot of credit for its outstanding reporting on the issue as well.)
The president, for his part, unequivocally denied that he would ever suspend illegal alien deportations by executive fiat. For example this is what Obama had to say in a March 28, 2011 speech at Bell Multicultural High School:
With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed — and I know that everybody here at Bell is studying hard so you know that we’ve got three branches of government. Congress passes the law. The executive branch’s job is to enforce and implement those laws. And then the judiciary has to interpret the laws.
There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.”
I couldn’t agree more. The proper role of Congress is to make the law. The proper role of the Executive branch is to enforce the law. We saw a piece of our liberty stolen from us last week. The will of the American people, as enshrined in federal immigration law, was usurped by one man, our president. This is a blow to our republican form of government and an attack on the God-given right of self-government.
The Obama administration’s attempt to get around Congress on the issue of illegal alien amnesty raises serious separation of powers concerns. Our attorneys and investigators are fast at work exploring Judicial Watch’s options. (By the way, don’t rely on Republican politician Mitt Romney to save the day. He has yet to confirm that he would reverse Obama’s brazen ultra vires act.)
In the meantime, I want to tell you about an important court victory that occurred last week on a related issue. Thanks to our hard-working and talented attorneys, voters will finally have an opportunity to preserve rule of the law and put an end to taxpayer funded discounted tuition for illegal aliens this November.
According to The Washington Post:
A day after advocates for undocumented immigrants made a last-ditch effort to keep Maryland’s Dream Act from the November ballot, the state’s Court of Appeals did the opposite Wednesday, clearing the way for Maryland’s first referendum on a state law in 20 years…
…In essence, the order rejects a lawsuit filed by two unnamed illegal immigrants and other voters that contended that Maryland’s Dream Act involved fiscal matters and therefore under state law should be exempt from second-guessing by voters in a referendum.
We are pleased that Maryland’s highest court vindicated the people’s right to have their say at the ballot box about the issue of in-state tuition for illegal aliens. The fate of the Maryland DREAM Act is now, as it should be, in the hands of the Maryland voters.
Arguments were presented to the Court of Appeals on June 12, 2012 (the Maryland court then ruled in our client’s favor the next day!). Two illegal aliens, several Maryland voters, and the left-wing activist group Casa de Maryland sought to reverse an overwhelmingly successful petition drive to put the Maryland DREAM Act on the ballot in 2012. Judicial Watch represented MDPetitions.com in our successful legal defense of its historic petition effort.
MDPetitions.com collected 132,071 signatures, nearly twice the amount required by law, in support of a petition to contest via referendum SB 167 (the Maryland DREAM Act), a law signed by Governor Martin O’Malley on May 10, 2011, that will enable certain illegal aliens to pay reduced tuition rates at Maryland community colleges and public higher education institutions.
Open borders advocates are taking their cues from the top. When they see Obama flouting the law, it gives them the confidence to put forth their own radical policies, like taxpayer-funded tuition perks for illegal alien students. Judicial Watch takes its cue from the U.S. Constitution and will continue to fight for the American people who want the rule of law on illegal immigration to be upheld.
Moving onto Obama’s constitutional crisis “number three,” what is the president trying to hide regarding his controversial “recess” appointment of the Consumer Financial Protection Bureau’s (CFPB) radical left Director Richard Cordray?
On June 7, 2012, we filed a Freedom of Information Act (FOIA) lawsuit against the agency to obtain records detailing the appointment.
Specifically, on January 12, 2012, Judicial Watch submitted a FOIA request to CFPB seeking access to all records of communications between the CFPB and the White House, the Executive Office of the President, the Treasury Department and Congress concerning President Obama’s “recess appointment” of Cordray. The request also seeks access to records of communications between the CFPB and the White House concerning a January 6, 2012, visit by President Obama to the CFPB two days after the appointment was announced.
On January 25, 2012, Judicial Watch submitted a separate FOIA request to CFPB seeking communications concerning Cordray’s appointment, as well as reimbursements, reservations, vouchers and any other documentation reflecting travel and lodging for Mr. Cordray, his family, any additional guests, and the Ohio judge who, in January 2012, administered Mr. Cordray’s oath of office in Washington, D.C.
The agency has failed to fully respond to Judicial Watch’s requests within the statutory allotted time-frame, prompting our lawsuit.
Now here’s why I say this appointment was unconstitutional.
When President Barack Obama announced his decision to install Cordray as head of the CFPB, the president called the move a “recess” appointment.
Republicans in the Senate previously filibustered the Cordray nomination. Cordray was considered a candidate unlikely to pass any vetting by the U.S. Senate owing to his radical, anti-free market views. (In an interview with The Wall Street Journal, for example, Cordray compared employees of a financial services company to the “Nazis at Nuremberg” who said they were just following orders. This is not the kind of statement the president wanted subject to congressional scrutiny during a confirmation hearing.)
But here’s the problem.
At the time of President Obama’s “recess appointment,” Congress was not in recess! Article I, Section 5, Clause 4 of the U.S. Constitution provides that: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days ….” To prevent any recess appointment, the Republican-controlled House refused to consent to Senate adjournment (resulting in the Senate’s coming into session every three days). Nonetheless, President Obama declared that Congress was in recess and made the Cordray appointment.
In his February 6, 2012, “Weekly Message,” to the CFPB staff, Richard Cordray acknowledged that his appointment as the agency’s director without Senate approval was vulnerable to legal challenge: “There is a chance (a minor chance in my view, though everyone is entitled to his or her own opinion) that the appointment would be invalidated by a court.”
Nonetheless, despite the controversial nature of the appointment, just two days after the Cordray appointment, President Obama made a visit to the CFPB. As reported by Politico: “Taking what amounted to a victory lap, President Barack Obama visited the new Consumer Financial Protection Bureau Friday morning to anoint Richard Cordray as its director after installing him in the job despite Republican opposition and threats of partisan warfare.”
It shows how far we have fallen in terms of our respect for the rule of law when a politician runs a “victory lap” after stomping on the U.S. Constitution.
Given the Obama administration’s penchant for secrecy, I am not at all surprised we must file a lawsuit to obtain these records on this scandalous appointment. I’m sure the president would rather all details regarding his unlawful decision be kept under lock and key, but we intend to hold the Obama administration accountable to the rule of law.
The Cordray appointment is an abuse of office that disregards the U.S. Constitution and the U.S. Senate’s constitutional “advise and consent” role.
In response to the Judicial Watch lawsuit, CFPB, in a classic Washington cover-up move, produced a dozen pages of documents, via emails sent to us at 9:59 p.m. and 10:19 p.m. on Friday, June 8. (Another late Friday night document dump!) It was a paltry document dump and our open records lawsuit will continue.
Until next week…