DOJ ordered to release list of Fast & Furious documents Obama protected with executive privilege

As with Obama’s other scandals, his delaying tactics worked.  Operation Fast and Furious, one of the most astounding abuses of power and cover-ups in American history, is a footnote now, a cobwebbed bit of “old news” the media barely covered when it was fresh, and now regards as a fading partisan obsession.  It would have been the biggest story in the world under a Republican president, of course, and such a president’s last-ditch stonewall tactic of protecting vital documents with an absurd claim of executive privilege would have turned him, forever, into the second coming of Tricky Dick Nixon.  We’d have at least one big Hollywood movie about the Fast and Furious saga by now, with Oscar consideration for writers, director, and whoever played slain Border Patrol agent Brian Terry.


At long last, the stonewall has chipped a little, as the Justice Department has been ordered by a federal judge to release a list of the documents President Obama didn’t want the American people and their representatives to see.  It’s just a list or “index” of the documents, mind you, but it’s a start.  No thanks whatsoever to the vaunted “mainstream media” and its “hard-hitting investigative reporters,” of course; it’s the result of yet another Freedom of Information Act lawsuit filed by conservative watchdog group Judicial Watch.  Big Media thinks a story is over at the precise moment Obama’s flacks tell them it’s over, so they don’t file a lot of FOIA lawsuits these days.

For those who didn’t follow the Fast and Furious story – which some major media outlets didn’t mention at all until they were forced to explain why Attorney General Eric Holder had been held in contempt of Congress – it was a massive gun-running program conducted by the ATF, with the assistance of quite a few other agencies of the Obama Administration, pushing a huge volume of American firearms across the border into the hands of Mexican drug gangs.  The objective was supposedly to follow the weapons to their ultimate criminal end users, but no real effort was made to follow the guns, leading to suspicious that the true ulterior motive of the initiative was to pump up Obama talking points about how lax American gun laws were flooding Mexico with arms.  A large number of people ended up getting killed with Fast and Furious guns, including Border Patrol agent Brian Terry.  Fast and Furious weapons have been flowing back into American cities as well, skipping across the same border that Senate Majority Leader Harry Reid described recently as “secure.”


Under the most benevolent interpretation, Operation Fast and Furious was an astonishing failure of managerial oversight, but for some reason Attorney General Holder still has his job.  (He survived by deploying the strongest form of the Obama Administration’s Incompetence Defense seen up to that point, claiming that he had no idea what the Justice Department he nominally heads was up to, because he doesn’t read his mail.  That was necessary because, after a congressional oversight root canal, it was discovered that Holder had been given written notice about the status of the operation.)

When things started looking really ugly, President Obama swooped in to save Holder by throwing a blanket of executive privilege over the documents his Attorney General had been defying subpoenas to protect.  The House Oversight Committee has undertaken litigation to enforce its subpoenas, but the last-ditch stonewall tactic worked beautifully, since almost a year and a half has gone by, Obama got re-elected, and the media is back to thinking Fast and Furious has something to do with Vin Diesel.

Judicial Watch has been using the Freedom of Information Act to demand access to the hidden documents, but the Justice Department stymied the request by claiming it would interfere with their ongoing court battle against the House of Representatives.  (In other words: the public can’t see these documents because that would interfere with our legal effort to prevent Congress from seeing these documents!)


D.C. District Court Judge John D. Bates took the exact opposite view, as Judicial Watch notes in its press release, saying that compliance with the FOIA request may help resolve the struggle between DOJ and House Oversight:

True, nothing in the subpoena enforcement context of House Committee would require DOJ to produce a particularized description of the withheld documents…But this is a FOIA case, and since 1973, when Vaughn was decided, courts in this circuit have required agencies to justify their FOIA withholdings on a particularized basis. And doing so here will not prematurely expose or resolve the executive privilege issues ahead of Judge Jackson and the political branches; it will merely permit the parties and this Court to cull from the dispute any documents as to which a valid, non-executive privilege reason for withholding exists, thereby narrowing or perhaps even resolving the case. To the extent DOJ argues that the mere production of the Vaughn index—not involving the release of any documents in dispute—would alter the historical balance of powers between the branches, any unbalancing would result from FOIA itself, a law passed by Congress and signed into law by the President, and which this Court cannot ignore forever.

The index DOJ has been ordered to release by October 1 would include both a description of each withheld document, and a full explanation of how its release would damage criminal cases, national security, etc.  As the court noted, it’s rather difficult to test the validity of executive privilege claims without any knowledge of what is being protected, or why its release would supposedly be disastrous for something more important than the President’s political fortunes.


Judicial Watch president Tom Fitton also had Nixon on his mind when taking his victory lap over the judge’s order: “A federal court has ordered the Obama administration to produce information that could, for the first time, provide specific details who in the administration is responsible for Fast and Furious lies to Congress and the American people.  This is a battle that put Eric Holder in contempt of Congress, saw Nixonian assertions of executive privilege by Barack Obama, and a hapless Congress in face of all this lawlessness.  Finally, we may get some accountability for Border Patrol Agent Brian Terry and the countless others murdered as a result of the insanely reckless Obama administration program.”

The stonewall tactics deployed by Obama and Holder might end up failing in one mischievous respect: the deadline for releasing that potentially embarrassing list of buried documents is just over a month before the midterm election.  The important thing was getting Obama re-elected, of course, but Democrats already looking at a rough November may come to resent a strategy that brings the Fast and Furious story back to life right before voters head to the polls… with the ineptitude of the Obama Administration, and border security, already on their minds.

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