Faster and More Furious

President Obama's invocation of executive privilege to resist producing documents subpoenaed by Congress in connection with the investigation of Fast and Furious may turn out to be a rather large deal.

At first blush, these seems to be an extraordinary assertion of executive privilege which is most decidedly not a blanket warrant to assert confidentiality and is generally applicable to communications concerning " military, diplomatic, or sensitive national security secrets."

It is hard to see how the documents for which privilege is being asserted could qualify. They are, as reflected in this morning's letter from Deputy Attorney General David Cole, documents generated after February 4, 2011 related to the Department of Justice's response to Congress and whistleblower allegations.

February 4, 2011 is significant because it is the date of a letter in which the Justice Department misrepresented Fast and Furious to Congress. On that day, DOJ sent a letter in which it said that guns were not deliberately permitted to cross the border. They were. Attorney General Holder later described the letter as "inaccurate" but refused to agree that it was "false."

So it is far from clear that the documents requested could have involved Presidential communications (Holder says that he never discussed the matter with the President) or even any high level government official. It seems unlikely that they could have involved the type of military, diplomatic or sensitive national security matters normally thought to justify a claim of executive privilege. It looks like we have nothing beyond a generalized claim of confidentiality ot the type that the Supreme Court rejected in United States v. Nixon, 418 U.S. 683 (1974).

In fact, it seems as if the claim is that the DOJ, having misrepresented the matter to a Congressional oversight committee, is arguing that Congress is not entitled to conduct its own investigation as to  how and why that misrepresentation occurred. Instead, in today's letter, Deputy Attorney General offers to provide a "briefing" on how Congress was misled with "some" documents while others will be withheld but explained in some way.

That is, to put it mildly, a counter-intuitive proposition and a rather weak proposal. Given the lack of candor in the Department's response to date (we are, after all, discussing an "inaccurate/false" letter) and Attorney General Holder's dissembling before the committee, no reasonable person could expect a "trust us" briefing to be acceptable.

Beyond that, the President has, for whatever reason, decided to own a scandal that he presumably could have avoided. Why would we have done that?

This bears watching.

Cross posted at Purple Wisconsin.