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Opinion: Columnists

Justice Department playing FOIA games on Fast and Furious

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Mark Tapscott,Columnists,Campaign 2012

Shortly after the House of Representatives' June 29 vote to hold him in contempt for defying its subpoena for Fast and Furious documents, Attorney General Eric Holder claimed the action was unjustified. He protested that he had taken "robust steps to facilitate extraordinary congressional oversight."

Think what you will about whether Holder obstructed legitimate congressional oversight on the Fast and Furious scandal (and there are smart, honest people on both sides of the debate). There are documents available concerning another aspect of Holder's conduct in the Fast and Furious investigation that leave little doubt about what was done.

Does that amount to illegal political manipulation of federal law to protect President Obama and his attorney general from the negative fallout of the Fast and Furious scandal?

Here are the details, which are a little complicated but worth following for those who care about transparency and accountability in government.

Judicial Watch, the nonpartisan watchdog group, filed a Freedom of Information Act request with the Justice Department on June 22 seeking all Fast and Furious documents covered by President Obama's executive privilege claim of two days before. Under FOIA, the department had to at least acknowledge receipt of the request within 20 business days. It is also allowed to request an additional 10 days before providing a formal response to the request.

Knowing that the June 22 request was almost certain to be denied, Judicial Watch further requested what is known as a "Vaughn Index" -- a description of each document the department opts not to provide, which must explain the grounds for every document withheld in whole or redacted in part.

Judicial Watch further explained that under the 1974 federal court decision from which the Vaughn Index gets its name, the explanation for each redaction was necessary "to allow us to assess the propriety of the claimed exemption."

July 6 came and went without a word from the department. July 20, the 20-business-day deadline, also came and went without a response from the department. Finally, after yet another 10 business days, Judicial Watch received the expected denial on Aug. 6, a full 30 days after it submitted its original request.

Why are these dates and deadlines significant? Judicial Watch's Tom Fitton explains: "The Justice Department took 20 days to answer our initial request, which it did by giving itself 10 days extra time. And now we have to appeal and wait another 20 days before we can sue."

What Fitton doesn't mention is what he and Justice Department officials know all too well: Months will go by before the case is heard before a federal judge. The November election will have been decided long before that happens.

The judge likely will then either overrule the executive privilege claim and tell the department to cough up all the documents Judicial Watch requested, or uphold the claim but direct the department to provide the requested Vaughn Index.

It's that Vaughn Index the Justice operatives are worried about. The description of what they redact and why could be very embarrassing if it comes out before the election.

Does that amount to illegal political manipulation of federal law to protect President Obama and his attorney general from the negative fallout of the Fast and Furious scandal? Fitton has no doubt about the right answer to that question: "This is a dishonest stonewall, Justice officials had the documents all along and obviously knew they were going to assert executive privilege over them. The Obama Justice Department is playing games to delay the day of reckoning in court."

If it looks like a duck, waddles like a duck and quacks like a duck, odds are good that it's a duck.

Mark Tapscott is executive editor of The Washington Examiner.

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