The House Oversight Committee has sued Attorney General Eric Holder in an attempt to force him to disclose documents in the Fast and Furious scandal.
President Obama cited executive privilege over the documents that the Oversight Committee, led by Darrell Issa, has sought. Typically in cases like this the judicial branch exercises a good deal of restraint before stepping into political questions between the other two branches. It would be novel for a federal judge to force an executive branch official to give documents to a legislative branch committee. And usually fairly wide deference is given to things like executive privilege.
But the House Oversight Committee, particularly Issa, appears content to play this one out. Even if this doesn’t land the documents, it keeps Holder on the defensive and keeps the whiff of scandal over the Justice Department.
You can see the complaint here. Issa’s committee asks the court to enforce the subpoena it issued for the Justice Department documents. It includes a fine use of the word “contumacious,” and says that the committee must have the documents – which involve internal communications at DoJ about how to respond to the Oversight Committee’s Fast and Furious investigation – “in order to discharge its Article I responsibility to conduct oversight over the Department so that the Committee, and the Congress more generally, may determine whether the Department’s malfeasance warrants additions to, or changes in, existing federal laws.”
So the Committee only wants those documents about how DoJ handled the investigation, which is a bit of a giveaway. We’re no longer having a discussion about a scandal, but about a response to a scandal, and whether that was, indeed, scandalous. There’s also a legal basis for this, because those internal deliberation documents do not involve “advice to the President,” and according to the Oversight Committee cannot be covered by executive privilege.
There are other definitions of executive privilege which might come into play here. In general, if this sets a precedent of less secrecy among federal agencies, as well as less invocation of blanket privileges to block oversight, regardless of the context, that may on balance end up being a good thing.