Skip to main content

Why stonewall Congress in Fast and Furious scandal?

By Mark J. Rozell and Mitchel A. Sollenberger, Special to CNN
updated 8:41 AM EDT, Thu June 28, 2012
Attorney General Eric Holder is at the center of the Fast and Furious scandal.
Attorney General Eric Holder is at the center of the Fast and Furious scandal.
STORY HIGHLIGHTS
  • The House plans to vote on whether to hold Attorney General Eric Holder in contempt
  • Mark Rozell, Mitchel Sollenberger: Congressional lawmakers are seeking truth
  • Obama cannot assert executive privilege just to hide embarrassing details, they say
  • Rozell, Sollenberger: Disclosure will reveal what happened with the botched operation

Editor's note: Mark J. Rozell, professor of public policy at George Mason University, is author of "Executive Privilege." Mitchel A. Sollenberger is associate professor of political science at the University of Michigan-Dearborn.

(CNN) -- In the escalating conflict between the White House and Congress over Operation Fast and Furious, the stakes are high for each side.

On Thursday, the House plans to vote on whether Attorney General Eric Holder should be held in contempt of Congress for refusing to turn over Justice Department documents related to the controversial gun-walking program.

Congressional lawmakers leading the charge see themselves as fulfilling a core prerogative of the legislative branch: to conduct investigations of possible wrongdoing or incompetence within the executive branch. The House, they would argue, cannot properly fulfill this duty without access to key documents.

The Obama administration also sees itself as carrying out important institutional functions of the executive branch: to protect the privacy of internal deliberations and enable the Justice Department to conduct its own inquiry without outside meddling.

Mark J. Rozell
Mark J. Rozell
Mitchel A. Sollenberger
Mitchel A. Sollenberger

To some political observers, this skirmish is just another political ploy by a Republican-led committee that wants to embarrass the president in an election year. Others disagree and see the president as acting in bad faith by asserting executive privilege to withhold the documents.

Fortune: The truth about the Fast and Furious scandal

Inevitably, executive privilege disputes result in accusations of political gamesmanship. It's impossible to know the true motivations of those involved, but we can evaluate the constitutional merits of the president's action.

Executive privilege has a long history in our system of separated powers.

The phrase never actually was used until the Eisenhower era, but presidents going back to George Washington have at times exercised some form of what we now call executive privilege. It is recognized as the right of the president and certain high-level executive branch officials to withhold information (documents and testimony) from those who have compulsory power -- Congressional committees or judicial entities such as special prosecutors. Some of the most contentious disputes in U.S. history -- Watergate, the Monica Lewinsky scandal -- have centered on executive privilege claims.

A brief history of 'Fast and Furious'
Holder contempt vote seems inevitable

Presidents marshal support for executive privilege claims by arguing that the requested documents or testimony encompass one or more of the following: presidential communications, internal deliberations, national security matters and information pertaining to an ongoing law enforcement investigation.

Obama's claim on the Fast and Furious documents relies on the internal deliberative process rationale and the ongoing law enforcement investigation defense.

Ultimately, the president's claim fails because it is too broad and does not overcome the strong presumption in favor of congressional access to information when there are allegations of misconduct in the executive branch. Furthermore, the longstanding standard for any executive privilege claim is that the president must be protecting information that, if released publicly, would cause some substantial harm to our national interest.

The president cannot assert this power merely to avoid the release of potentially embarrassing or politically inconvenient details.

What happens if Holder is cited?

Fast and Furious is a department-level program seemingly far removed from presidential oversight and direction. The very act of Obama using executive privilege in this case creates so many questions that Congress would be negligent in its duties to not press the president to properly explain his position or disclose the subpoenaed documents.

As for the accusation that House Republicans could be playing politics, that is certainly plausible. But concerns about a Justice Department program that appears to be designed to allow government-owned guns to be given to Mexican gangs, without a plan for how these weapons would be tracked, overcome any argument about the political motivations.

Any discussion about the program being "botched" is mere speculation until Congress receives all the relevant documents about how it was formulated and implemented.

Finally, even if the Obama administration's account of Fast and Furious is accurate, what is the point of stonewalling Congress?

Holder has already given the House some documents, which entail the deliberative process, so the primary justification for making the executive privilege claim seems makeweight.

Only full disclosure will help to reveal the truth of what happened with Fast and Furious, and from there, perhaps Congress will be able hold government officials accountable.

Follow us on Twitter @CNNOpinion

Join us on Facebook/CNNOpinion

The opinions expressed in this commentary are solely those of Mark J. Rozell and Mitchel A. Sollenberger.

ADVERTISEMENT
Part of complete coverage on
updated 2:45 PM EDT, Thu April 17, 2014
Michael Bloomberg and Shannon Watts say Americans are ready for sensible gun laws, but politicians are cowed by the NRA. Everytown for Gun Safety will prove the NRA is not that powerful.
updated 9:28 AM EDT, Thu April 17, 2014
Ruben Navarrette says Steve Israel is right: Some Republicans encourage anti-Latino prejudice. But that kind of bias is not limited to the GOP.
updated 7:23 PM EDT, Wed April 16, 2014
Peggy Drexler counts the ways Phyllis Schlafly's argument that lower pay for women helps them nab a husband is ridiculous.
updated 12:42 PM EDT, Wed April 16, 2014
Rick McGahey says Rep. Paul Ryan is signaling his presidential ambitions by appealing to hard core Republican values
updated 11:39 AM EDT, Wed April 16, 2014
Paul Saffo says current Google Glasses are doomed to become eBay collectibles, but they are only the leading edge of a surge in wearable tech that will change our lives
updated 2:49 PM EDT, Tue April 15, 2014
Kathleen Blee says the KKK and white power or neo-Nazi groups give haters the purpose and urgency to use violence.
updated 7:56 AM EDT, Wed April 16, 2014
Sen. Sheldon Whitehouse and Rep. Henry Waxman say read deep, and you'll see the federal Keystone pipeline report spells out the pipeline is bad news
updated 7:53 AM EDT, Wed April 16, 2014
Frida Ghitis says President Obama needs to stop making empty threats against Russia and consider other options
updated 5:29 PM EDT, Tue April 15, 2014
Peter Bergen and David Sterman say the Kansas Jewish Center killings are part of a string of lethal violence in the U.S. that outstrips al Qaeda-influenced attacks. Why don't we pay more attention?
updated 12:41 PM EDT, Tue April 15, 2014
Danny Cevallos says families of the passengers on Malaysian Airlines Flight 370 need legal counsel
updated 11:23 AM EDT, Mon April 14, 2014
David Frum says Russia is on a rampage of mischief while Western leaders and Western alliances charged with keeping the peace hem and haw
updated 7:56 AM EDT, Mon April 14, 2014
Most adults make the mistakes of hitting the snooze button and of checking emails first thing in the morning, writes Mel Robbins
updated 1:54 PM EDT, Mon April 14, 2014
David Wheeler says as middle-class careers continue to disappear, we need a monthly cash payment to everyone
updated 7:55 AM EDT, Mon April 14, 2014
Democrats need to show more political spine when it comes to the issue of taxes.
updated 11:55 AM EDT, Mon April 14, 2014
Donna Brazile recalls the 50th Anniversary of the Civil Rights Act as four presidents honored the heroes of the movement and Lyndon Johnson, who signed the law
updated 9:17 AM EDT, Mon April 14, 2014
Elmer Smith remembers Chuck Stone, the legendary journalist from Philadelphia who was known as a thorn in the side of police and an advocate for the little guy
updated 2:56 PM EDT, Sun April 13, 2014
Al Franken says Comcast, the nation's largest cable provider, wants to acquire Time Warner Cable, the nation's second-largest cable provider. Should we be concerned?
updated 11:22 AM EDT, Fri April 11, 2014
Philip Cook and Kristin Goss says the Pennsylvania stabbing attack, which caused grave injury -- but not death, carries a lesson on guns for policymakers
updated 3:06 PM EDT, Fri April 11, 2014
Wikipedia lists 105 football movies, but all too many of them are forgettable, writes Mike Downey
updated 10:32 AM EDT, Fri April 11, 2014
John Sutter and hundreds of iReporters set out to run marathons after the bombings -- and learned a lot about the culture of running
updated 12:49 PM EDT, Fri April 11, 2014
Timothy Stanley says it was cowardly to withdraw the offer of an honorary degree to Ayaan Hirsi Ali. The university should have done its homework on her narrow views and not made the offer
updated 10:16 AM EDT, Fri April 11, 2014
Al Awlaki
Almost three years after his death in a 2011 CIA drone strike in Yemen, Anwar al-Awlaki continues to inspire violent jihadist extremists in the U.S, writes Peter Bergen
updated 9:21 PM EDT, Fri April 11, 2014
David Bianculli says Colbert is a smart, funny interviewer, but ditching his blowhard persona to take over the mainstream late-night role may cost him fans
updated 1:31 PM EDT, Thu April 10, 2014
Rep. Paul Ryan says the Republican budget places its trust in the people, not in Washington
updated 5:28 PM EDT, Thu April 10, 2014
Aaron David Miller says Obama isn't to blame for Kerry's lack of progress in resolving Mideast talks
updated 11:22 AM EDT, Mon April 14, 2014
David Weinberger says beyond focusing on the horrors of the attack a year ago, it's worth remembering the lessons it taught about strength, the dangers of idle speculation and Boston's solidarity
updated 12:32 PM EDT, Thu April 10, 2014
Katherine Newman says the motive for the school stabbing attack in Pennsylvania is not yet known, but research on such rampages turns up similarities in suspects and circumstances
updated 2:39 PM EDT, Wed April 9, 2014
Wendy Townsend says the Rattlesnake Roundup -- where thousands of pounds of snakes are killed and tormented -- is barbaric
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT