Rep. Darrell Issa, the congressman in the middle of the white-hot Fast & Furious scandal investigation, was doing a live interview with Fox News’ Greta van Susteren Wednesday night when his phone rang.
“That may be the attorney general,” van Susteren said.
“If it’s Barack, I’ll tell him we’re not available,” Issa answered, fiddling with the phone to turn it off.
Joking references to “Barack” aside, Issa and his fellow Republicans on the Hill are waiting for word from the White House on the newest critical questions in the investigation. What documents are covered by the president’s decision to invoke executive privilege in the Fast & Furious case? And what documents aren’t?
Late Wednesday, Issa’s counterpart in the Senate, Republican Sen. Charles Grassley, sent a letter to the White House asking President Obama to specify which Fast & Furious documents are covered by the president’s executive privilege claim. Issa had narrowed his subpoena to about 1,300 documents covering the Justice Department’s response to congressional inquiries about Fast & Furious. It is not clear whether Obama is asserting that all those documents are protected by executive privilege, or just any documents that specifically concern the president himself, or perhaps some other subset of the whole group.
“Can you please provide a more precise description of the scope of your executive privilege claim?” Grassley asked. “Are you asserting it only with regard to documents called for by the subpoena that may have involved communications with you? Or are you extending your claim to records of purely internal Justice Department communications, not involving the White House? Please provide a more detailed description of the documents that you are or are not asserting executive privilege to protect.”
Also on Wednesday, Issa — who said that he first learned of Obama’s executive privilege claim 10 minutes before a hearing at which the House Oversight and Government Reform Committee was scheduled to vote to find Holder in contempt of Congress — argued that executive privilege “only applies to materials that directly pertain to communications with the president and his senior advisors.” The fact that Obama asserted the privilege, Issa said, “indicates that the White House’s role in Operation Fast and Furious and the response to whistleblower accusations has been greater than previously acknowledged.”
Holder and the White House, on the other hand, are arguing that the materials are covered by the “deliberative process” aspect of executive privilege. The documents in question, Holder wrote in his Wednesday letter to President Obama, “were created… in the course of the Department’s deliberative process concerning how to respond to congressional and related media inquiries into that operation.”
It seems doubtful that Obama and Holder will prevail; as lawyer/blogger John Hinderaker writes, the “deliberative process” privilege for executive branch documents that do not specifically involve the president is quite qualified. On Fox Wednesday night, Issa called the invocation of privilege “an eleventh hour stunt” and said Obama “is seriously trying to create an executive privilege that doesn’t exist or has been loosely held.” But any sort of adjudication of that issue is a long way away. First, Issa, Grassley, and their fellow Republicans need to learn just what documents the president and attorney general are withholding.