UPDATE: Darrell Issa’s House Oversight Committee has just voted to hold Attorney General Eric Holder in contempt, on a party-line vote of 23 to 17.

I’ve pretty much said what I want to say about the Fast and Furious situation and the looming vote holding Eric Holder in contempt by Darrell Issa. I think it’s fairly clear at this point that ATF letting guns walk to track them was a bad strategy badly executed. That’s why the head of ATF resigned. Where Holder fits into the picture is unclear to me, but certainly Darrell Issa wants him front and center, as a means to embarrass the White House.

Obviously there’s a he said/she said quality to this. The Administration claims that they have provided all the documents necessary to prove Holder’s lack of involvement with the operation, that it was driven by officials in the field. Issa claims otherwise, and cites a couple possibly-retracted statements by Holder as evidence (read the article for the meaning of “possibly”). Ian Milhiser makes a compelling argument that Issa really doesn’t have a case here, and is just hyping this for political reasons.

But I think anytime executive privilege gets invoked, it deserves close scrutiny. It’s a rare event: President Obama had never used it before, and Presidents Clinton and Bush only used it a handful of times in their terms of office (though much more than Obama, it must be said). So what’s the rationale here?

According to Justice Department official David Cole, DoJ has already delivered over 7,600 documents in the Fast and Furious case, and officials have answered questions on a number of occasions. There’s an open investigation at DoJ on the operation, and DoJ has also basically stopped future gun-walking operations. Additionally, Cole says that the investigation has now narrowed to whether or not Holder misled Congress, and that DoJ has complied in a number of ways with that investigation. But here’s the nub of the issue:

The documents responsive to the remaining subpoena items pertain to sensitive law enforcement activities, including ongoing criminal investigations and prosecutions, or were generated by Department officials in the course of responding to congressional investigations or media inquiries about this matter that are generally not appropriate for disclosure [...]

we offered to provide the Committee with a briefing, based on documents that the Committee could retain, explaining further how the Department’s understanding of the facts of Fast and Furious evolved during the post-February 4 period, as well as the process that led to the withdrawal of the February 4 letter [...] We also offered to provide you with an understanding of the documents that we could not produce and to address any remaining questions that you had after you received the briefing and the documents on which it was based. We believe that this additional accommodation would have fully satisfied the Committee’s requests for information [...]

The legal basis for the President’s assertion of executive privilege is set forth in the enclosed letter to the President from the Attorney General. In brief, the compelled production to Congress of these internal Executive Branch documents generated in the course of the deliberative process concerning the Department’s response to congressional oversight and related media inquiries would have significant, damaging consequences.

So you have Cole saying that there is sensitive information in the remaining documents, and that the committee could have seen them, and been briefed on them, but then that the documents involved internal deliberations and “would have significant, damaging consequences” if they leaked out. These two things are in tension with one another. Why can the committee view them, and presumably incorporate them into their investigation, but the media cannot? They are either under executive privilege or they’re not. And really, Cole writes that the Administration has a problem with “compelled disclosure” that violates separation of powers. The implication is that the Administration gets to decide what information to release. That does seem like a separation of powers issue, but not the way they mean it.

There is an argument to be made that the documents include information that would be better kept secret, and within the confines of the committee (indeed, that offer, in this view, could bolster Holder’s argument). But given this Administration’s history with secrecy, I have to remain skeptical of that claim.

There’s nothing to argue with Dan Pfeiffer’s claim that this whole issue is basically a distraction. That doesn’t mean that executive privilege as a tool shouldn’t be viewed with a jaundiced eye.

There’s more from Wired and The Huffington Post. I think that the best way out for all involved is to work on reforms at ATF that would prevent this kind of thing from happening again, due to communications disconnects between the field operations and the central authority.