BY ROY COOPER – 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 via 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 (DOJ) must provide a compelling rationale for each assertion. Shielding wrongdoing has never been a qualifying rationale.
First, the Supreme Court in United States v. Nixon (1974) held that executive privilege cannot be invoked at all if the purpose is to shield wrongdoing. The courts held that [President] Nixon’s purported invocation of executive privilege was illegitimate, in part, for that reason. There is reason to suspect that this might be the case in the Fast and Furious cover-up and stonewalling effort. Congress needs to get to the bottom of that question to prevent an illegal invocation of executive privilege and further abuses of power. That will require an index of the withheld documents and an explanation of why each of them is covered by executive privilege—and more.
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.
Gaziano explains further:
[T]he President is required when invoking executive privilege to try to accommodate the other branches’ legitimate information needs in some other way. For example, it does not harm executive power for the President to selectively waive executive privilege in most instances, even if it hurts him politically by exposing a terrible policy failure or wrongdoing among his staff. The history of executive–congressional relations is filled with accommodations and waivers of privilege. In contrast to voluntary waivers of privilege, Watergate demonstrates that wrongful invocations of privilege can seriously damage the office of the presidency when Congress and the courts impose new constraints on the President’s discretion or power (some rightful and some not).
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.
It is also time for the media to begin responsibly covering this scandal. For more than 16 months, only a handful of reporters have appropriately researched the facts and sought answers. Most members of the national media would not even acknowledge the existence of the scandal. Reportedly, NBC Nightly News ran its first story on the scandal just this past Tuesday.
The national media must now follow the lead of their colleagues CBS reporter Sharyl Attkisson or Townhall’s Katie Pavlich and investigate the specific facts and details of the operation and administration involvement. Attkisson, as you may remember, was screamed and cussed at by White House spokesman Eric Schultz in October for asking questions about Operation Fast and Furious.
Answers must be demanded. When was the first time President Obama was briefed on this operation? Given his previous conflicting testimony, when in fact did Attorney General Eric Holder become involved? What exactly did he know and when did he know it?
Despite the fact that Mexico was left in the dark by the Obama administration, this was still an international operation. If Secretary of State Hillary Clinton must approve the Keystone pipeline, wouldn’t she also be consulted on this cross-border operation?
Liberals will try and pretend this operation that began in mid-2009 is connected to former President George W. Bush’s administration. The media should challenge this false assertion. Operation Wide Receiver in 2006 did not remotely resemble Fast and Furious, as National Review’s Andrew McCarthy has ably examined. Mexico helped coordinate it, and there was traceable controlled delivery. Even Holder admitted in testimony that you cannot “equate the two.”
We will also hear that this is “election-year politics.” The problem with that refrain is that this investigation has been ongoing since early 2011, well before campaign season started. It has been Attorney General Holder’s evasiveness that has dragged this process closer to Election Day.
If it were not for conservative media outlets, bloggers, a few dogged reporters and the steadfastness of House Government Reform Chairman Darrell Issa (R-CA), this troubling scandal would have been buried long ago.
A brave American border agent is dead. At least 200 Mexicans have been slaughtered with these weapons. Drug violence on the border remains unabated. Now, President Obama is attempting to conceal the facts of what happened. This is an opportunity for Congress and the media to demand sunlight.
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