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Perugino: Executive privilege and the Constitution
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On the night of December 15, 2010, U.S. Border Patrol Agent Brian Terry was shot and killed by an untraceable assault weapon that was deliberately handed to Mexican drug lords by U.S. officials through Operation Fast and Furious. Ever since, the Terry family and Americans across the nation have asked how this could have happened.

And ever since, Attorney General Eric Holder has stonewalled Congress in its attempts to find these answers. Yesterday, President Obama joined this stonewalling effort, asserting executive privilege over many of the documents about the operation that Congress had subpoenaed but still had not received.

Executive privilege is legitimate when properly invoked. But even then, the Supreme Court has maintained that it is not absolute. The Department of Justice must provide a compelling rationale for each assertion. Shielding wrongdoing has never been a qualifying rationale.

The most important part of the legal doctrine of executive privilege that President Obama has asserted in the congressional investigation of Operation Fast a Furious to understand is that a president cannot assert executive privilege for the purpose of hiding wrongdoing by Administration officials.

It is now up to Congress to ascertain the specific reasoning for executive privilege with every withheld document. Even in the unlikely case it is determined that this was a proper invocation of executive privilege, the administration is still not off the hook to inform Congress of what they know.

President Obama now owns the Fast and Furious scandal. It is entirely up to him whether he wants to live up to the transparency promises he made four years ago, or further develop a shroud of secrecy that would make President Richard Nixon blush. If the stonewalling continues, and the privilege is not waived, it will be up to the American people and the media to demand the reasoning for the cover-up.

The House Oversight and Government Reform Committee has received much of its relevant information from whistle blowers, not the DOJ, including copies of six Operation Fast and Furious wiretap applications that Attorney General Eric Holder refused to provide. Contrary to the sworn position taken by Holder that the "inappropriate tactics" (as he now admits) in Operation Fast and Furious "were not initiated or authorized by Department leadership in Washington," those wiretap applications as well as other internal emails show that political appointees in the leadership, such as Assistant Attorney General Lanny Breuer, were well aware of the operation and the dangerous tactics being used.

Yet Holder has refused to answer, or provide the documents that would answer, the critical question being investigated by the House Committee: Who were the senior officials at DOJ who were told about and/or approved this irresponsible operation, and what was the law enforcement rationale for doing so? Executive privilege does not shield information and documentation that would provide the answer to those questions.

Holder attempts to mislead the president on this issue in his June 19 letter requesting that President Obama assert executive privilege. Holder said that he is only asking for executive privilege to shield any information "concerning [DOJ's] response to congressional oversight and related media inquiries," since Issa supposedly narrowed his request to those documents. But Issa offered to narrow his committee's request only if Holder would agree to finally quit stonewalling.

Holder refused to agree to that accommodation, so all of the other information being sought under the outstanding subpoenas about the planning, initiation, approval, and conduct of Operation Fast and Furious is still outstanding and isn't even covered under Holder's request - or the apparent grant of privilege provided by President Obama (and there is no reasonable basis for asserting executive privilege on something as routine as responding to media inquiries).

In any event, the president's attempt to assert executive privilege is just the latest move in the Administration trying to prevent any political appointees within the most politicized DOJ in our lifetime from having to take responsibility for the serious mistakes in judgment made in this operation, mistakes that have killed a U.S. agent and many Mexican citizens.

It would be a rank abuse of the Constitution for the President to use executive privilege simply to prevent political embarrassment and to shield political appointees from the consequences of their ill-considered and careless judgment and actions.

William Perugino is active in local and regional politics and can be reached at