Judicial Watch had filed, on June 22, 2012, a Freedom of Information Act (FOIA) request seeking all documents relating to Operation Fast and Furious and “specifically [a]ll records subject to the claim of executive privilege invoked by President Barack Obama on or about June 20, 2012.”
The administration has refused to comply with Judicial Watch’s FOIA request, and in mid-September the group filed a lawsuit challenging Holder’s denial. That lawsuit remains ongoing but within the past week President Barack Obama’s administration filed what’s called a “motion to stay” the suit. Such a motion is something that if granted would delay the lawsuit indefinitely.
Judicial Watch President Tom Fitton said that Holder’s and Obama’s desire to continually hide these Fast and Furious documents is “ironic” now that they’re so gung-ho on gun control.“It is beyond ironic that the Obama administration has initiated an anti-gun violence push as it seeking to keep secret key documents about its very own Fast and Furious gun walking scandal,” Fitton said in a statement.“Getting beyond the Obama administration’s smokescreen, this lawsuit is about a very simple principle: the public’s right to know the full truth about an egregious political scandal that led to the death of at least one American and countless others in Mexico. The American people are sick and tired of the Obama administration trying to rewrite FOIA law to protect this president and his appointees. Americans want answers about Fast and Furious killings and lies.”
The only justification Holder uses to ask the court to indefinitely delay Judicial Watch’s suit is that there’s another lawsuit ongoing for the same documents – one filed by the U.S. House of Representatives. Judicial Watch has filed a brief opposing the DOJ’s motion to stay.
As the House Committee on Oversight and Government Reform was voting Holder into contempt of Congress for his refusal to cooperate with congressional investigators by failing to turn over tens of thousands of pages of Fast and Furious documents, Obama asserted the executive privilege over them. The full House of Representatives soon after voted on a bipartisan basis to hold Holder in contempt.
There were two parts of the contempt resolution. Holder was, and still is, in both civil and criminal contempt of Congress. The criminal resolution was forwarded to the U.S. Attorney for the District of Columbia Ronald Machen–who works for Holder–for prosecution. Despite being technically required by law to bring forth criminal charges against Holder, under orders from Holder’s Department of Justice Machen chose to ignore the resolution.
The second part of the contempt resolution–civil contempt of Congress–allowed House Republicans to hire legal staff to challenge President Obama’s assertion of the executive privilege. That lawsuit remains ongoing despite Holder’s and the DOJ’s attempt to dismiss it and settle it.
It’s unclear what’s in the documents Obama asserted privilege over, but the president’s use of the extraordinary power appears weak. There are two types of presidential executive privilege: the presidential communications privilege and the deliberative process privilege. Use of the presidential communications privilege would require that the president himself or his senior-most advisers were involved in the discussions.