As Republicans in the House of Representatives continue to politicize and criminalize Operation Fast and Furious, they should at least try to keep their facts straight. But, hey, they're Republicans.
Sen. Charles Grassley (R-Iowa) is turning up the heat on the issue, and by his own published statements, we now have further proof that he is a cynic, a fool, or a cynical fool.
After a House committee dominated by Republicans voted today to recommend the entire House hold Attorney General Eric Holder in contempt of Congress in connection with its investigation of the Fast and Furious operation, Grassley -- who has been pushing an investigation for over a year -- said:
“The assertion of executive privilege raises monumental questions. How can the president assert executive privilege if there was no White House involvement? How can the president exert executive privilege over documents he's supposedly never seen?”A better question: How can a sitting, veteran United States senator make such hash of a widely known concept like executive privilege? Or, in plainer English, exactly how dumb can a US senator be?
Grassley apparently is laboring under the illusion -- or, knowing better, hopes to perpetuate the illusion -- that executive privilege pertains only to actions and exchanges involving the president himself. Actually, such privilege, even though it has been constrained by courts on a number of occasions, pertains to the entire executive branch, including cabinet officers.
The issue came up today when, just before GOP Rep. Darrell Issa's Committee on Oversight and Government Reform voted to recommend Holder's contempt citation by the full House, the Justice Department informed Issa that the president had formally asserted executive privilege over documents related to the committee's investigation into Fast and Furious.
Here, via Wikipedia, one of those newfangled encyclopedias that appear on that arcane instrument known as the Intertubes, is what Grassley doesn't know, or pretends not to know (boldfacing is my own):
...(E)xecutive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government. The concept of executive privilege is not mentioned explicitly in the United States Constitution, but the Supreme Court of the United States ruled it to be an element of the separation of powers doctrine, and/or derived from the supremacy of executive branch in its own area of Constitutional activity.Grassley's misunderstanding of executive privilege is made worse by the fact that he is the ranking Republican on the Senate Judiciary Committee. Oops.
The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon, but only to the extent of confirming that there is a qualified privilege. Once invoked, a presumption of privilege is established, requiring the Prosecutor to make a "sufficient showing" that the "Presidential material" is "essential to the justice of the case."(418 U.S. at 713-14). Chief Justice Burger further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch's national security concerns.
The Iowan's off-handed willingness to implicate the president in supposed misconduct, malfeasance, or something -- just after Issa and his fellow Republicans on the House committee did that to Holder -- ought to make clear that a large component of the GOP investigation into Fast and Furious is purely political: Embarass the administration, inject the implication of scandal and even criminality, and whip the whole mixture into a delicious, frothy dessert in time for the fall election.
Unfortunately, if the truth will out, it's not just that Grassley is dead wrong when he asserts that by invoking executive privilege the president logically must be implicating himself in some kind of hands-on involvement with the operation. It's that the operation, however misguided or mishandled, isn't even anything new.
Fast and Furious was a so-called "gun-walking" program under the Department of Justice that led to the death of an American law enforcement agent. Gun-walking has for some time, though not always in the public arena, been a controversial tactic. In such operations, the Bureau of Alcohol, Tobacco and Firearms deliberately allowed guns to be bought by suspected arms traffickers working to supply Mexican drug cartels.
The idea behind permitting such gun purchases was that ATF would track the weapons as they were transferred to higher-level traffickers and ultimately key suspects in the cartels. The goal was to arrest those higher-ups and break up the cartels.
But ATF lost track of many of the guns it allowed to be sold by the traffickers. The House committee has been investigating that breakdown and allegations that the breakdowns were somehow orchestrated on up to Holder. And now Grassley would like you to think Obama was personally involved somehow, too.
Now, there are legitimate reasons why Congress would like to examine the practice. And there are illegitimate reasons. Interestingly, Republican interest in the success or failure of gun-walking tactics only surfaced after the Obama administration took office.
And why would that matter? Well, because gun-walking operations have been an ATF staple for years. The first known such operation involving Mexican drug cartels, named Operation Wide Receiver, began in early 2006 and ran into late 2007. Again, from Wikipedia:
At the time, under the Bush administration Department of Justice (DOJ), no arrests or indictments were made. After President Barack Obama took office in 2009, the DOJ reviewed Wide Receiver in September 2009 and found that guns had been allowed into the hands of suspected gun traffickers. Indictments began in 2010, over three years after Wide Receiver concluded. As of October 4, 2011, nine people had been charged with making false statements in acquisition of firearms and illicit transfer, shipment or delivery of firearms... .Catch that? Under the Bush administration, "guns had been allowed into the hands of suspected gun traffickers." No problem, then, though. Wiki continues:
On October 26, 2009, a teleconference was held at the Department of Justice in Washington, D.C. to discuss U.S. strategy for combating Mexican drug cartels. Participating in the meeting were Deputy Attorney General David W. Ogden, Assistant Attorney General Lanny A. Breuer, ATF Director Kenneth E. Melson, Drug Enforcement Administration (DEA) Administrator Michele Leonhart, Director of the Federal Bureau of Investigation Robert Mueller and the top federal prosecutors in the Southwestern border states. They decided on a strategy to identify and eliminate entire arms trafficking networks rather than low-level buyers. Those at the meeting did not suggest using the "gunwalking" tactic, but ATF supervisors would soon use it in an attempt to achieve the desired goalsSo Fast and Furious was going to widen the effort. But then things went askew. ATF lost track of a majority of the newest batch of guns that had been "walked." One of those guns later was implicated in the death of a US law enforcement agent working in the region. Upset ATF employees contacted Grassley and others, and the next thing you know there's the insatiable equivalent of a star chamber in session on Capitol Hill.
Like we said, Congress has every right to look into Operation Fast and Furious. Let's by all means see that our government learns from its mistakes. In trying to interdict murderous Mexican drug cartels, handing out guns might seem a bit over the top but, the particulars of how the program was designed notwithstanding, it's fundamentally no different than having agents hand over tax dollars to drug dealers in an attempt to entrap them. Itself perhaps another bad idea in search of a solution.
In any case, after badgering Holder at numerous sessions and demanding tens of thousands of documents for examination, but receiving "only" 7,000 or so of them, the crusading Republicans have now declared Holder uncooperative, and in turn the administration has decided to let this become a matter for the courts.
That, of course, will slow down the investigation, not speed it up, but that probably doesn't matter to the drama queens in the GOP. It probably won't stop Grassley and his pals from making it seem like Barack Obama and Eric Holder were personally selling guns to drug traffickers in Mexico, and throwing in free D.C. tourist maps. Never mind that the program was somewhat successful, leading to the indictments of 20 traffickers. And, never mind that this sort of tactic was invented during the Bush administration, either.
It's too bad the program, apparently, went off the rails. It really is too bad an American agent was shot by a gun trafficked under Fast and Furious, and that missing guns from the operation have been used in 200 civilian killings.
On the other hand, every day in the Mideast since 2001, a couple of more US soldiers have died serving in US operations that at times over the past decade have been badly designed, managed and executed, and, worse, even based in part on lies. Eric Holder and Barack Obama long ago decided that it would be counterproductive to hold the previous administration starting with George W. Bush and Dick Cheney criminally accountable for those mistakes and lies. Meanwhile, the GOP has no such qualms.
The GOP and even some Democrats are wearing an even bigger set of blinders when it comes to the wider issues that helped drive ATF and higher level policymakers starting way back in the Bush administration to create gun-walking stings in the first place. They simply can't see the forest for the trees. Those issues are stark and simple:
1. Thanks to the NRA and Republican acquiesence, guns are very easy to obtain in the US and very easy to traffic into Mexico for illegal purposes, with or without US government sting operations.
2. The Mexican drug cartels have become murderous and powerful because of the huge market they are serving, which exists almost entirely inside the USA. That market in turn is driven by the very illegality of the drugs that the cartels smuggle to the US.
Strengthen gun laws and decriminalize at least some drug use in the US, and arguably there wouldn't be the kind of pressure and desperation felt inside ATF or government at large, of the kind that pushed gun-walking operations into existence in the first place.
But you won't hear any of that from Grassley. From all indications, he's now busy setting up what he apparently hopes will be the second impeachment of a Democratic sitting president in a row. If you're from Iowa and you ever voted for Grassley, thanks for nothing.
Wed Jun 27, 2012 at 7:29 PM PT: Fortune magazine has just published an extensive investigative article that concludes that ATF "never intentionally allowed guns to fall into the hands of Mexican drug cartels" in the "Fast and Furious" operation. See the Fortune magazine web site or CNN, which co-published the iece.