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 4:06 PM EDT, Tue October 21, 2014
Timothy Stanley says Lewinsky is shamelessly playing the victim in her affair with Bill Clinton, humiliating Hillary Clinton again and aiding her critics
updated 9:02 PM EDT, Mon October 20, 2014
Imagine being rescued from modern slavery, only to be charged with a crime, writes John Sutter
updated 12:00 PM EDT, Tue October 21, 2014
Tidal flooding used to be a relatively rare occurrence along the East Coast. Not anymore, write Melanie Fitzpatrick and Erika Spanger-Siegfried.
updated 7:35 AM EDT, Tue October 21, 2014
Carol Costello says activists, writers, politicians have begun discussing their abortions. But will that new approach make a difference on an old battleground?
updated 9:12 AM EDT, Tue October 21, 2014
Sigrid Fry-Revere says the National Organ Transplant Act has caused more Americans to die waiting for an organ than died in both World Wars, Korea, Vietnam, Afghanistan and Iraq
updated 2:51 PM EDT, Tue October 21, 2014
Crystal Wright says racist remarks like those made by black Republican actress Stacey Dash do nothing to get blacks to join the GOP
updated 2:27 PM EDT, Tue October 21, 2014
Mel Robbins says by telling her story, Monica Lewinsky offers a lesson in confronting humiliating mistakes while keeping her head held high
updated 9:29 AM EDT, Mon October 20, 2014
Cornell Belcher says the story of the "tea party wave" in 2010 was bogus; it was an election determined by ebbing Democratic turnout
updated 4:12 PM EDT, Mon October 20, 2014
Les Abend says pilots want protocols, preparation and checklists for all contingencies; at the moment, controlling a deadly disease is out of their comfort zone
updated 11:36 PM EDT, Sun October 19, 2014
David Weinberger says an online controversy that snowballed from a misogynist attack by gamers into a culture war is a preview of the way news is handled in a world of hashtag-fueled scandal
updated 8:23 AM EDT, Mon October 20, 2014
Julian Zelizer says Paul Krugman makes some good points in his defense of President Obama but is premature in calling him one of the most successful presidents.
updated 10:21 PM EDT, Sun October 19, 2014
Conservatives can't bash and slash government and then suddenly act surprised if government isn't there when we need it, writes Sally Kohn
updated 8:28 AM EDT, Mon October 20, 2014
ISIS is looking to take over a good chunk of the Middle East -- if not the entire Muslim world, write Peter Bergen and Emily Schneider.
updated 9:00 AM EDT, Mon October 20, 2014
The world's response to Ebola is its own sort of tragedy, writes John Sutter
updated 4:33 PM EDT, Fri October 17, 2014
Hidden away in Russian orphanages are thousands of children with disabilities who aren't orphans, whose harmful treatment has long been hidden from public view, writes Andrea Mazzarino
updated 1:22 PM EDT, Sat October 18, 2014
When you hear "trick or treat" this year, think "nudge," writes John Bare
updated 12:42 AM EDT, Sat October 18, 2014
The more than 200 kidnapped Nigerian schoolgirls have become pawns in a larger drama, writes Richard Joseph.
updated 9:45 AM EDT, Fri October 17, 2014
Peggy Drexler said Amal Alamuddin was accused of buying into the patriarchy when she changed her name to Clooney. But that was her choice.
updated 4:43 PM EDT, Thu October 16, 2014
Ford Vox says the CDC's Thomas Frieden is a good man with a stellar resume who has shown he lacks the unique talents and vision needed to confront the Ebola crisis
updated 4:58 AM EDT, Sat October 18, 2014
How can such a numerically small force as ISIS take control of vast swathes of Syria and Iraq?
updated 9:42 AM EDT, Fri October 17, 2014
How big a threat do foreign fighters in Syria and Iraq pose to the West? It's a question that has been much on the mind of policymakers and commentators.
updated 8:21 AM EDT, Fri October 17, 2014
More than a quarter-million American women served honorably in the Iraq and Afghanistan wars. Now they are home, we have an obligation to help them transition back to civilian life.
updated 4:27 PM EDT, Thu October 16, 2014
Paul Begala says Rick Scott's deeply weird refusal to begin a debate because rival Charlie Crist had a fan under his podium spells disaster for the Florida governor--delighting Crist
updated 12:07 AM EDT, Thu October 16, 2014
The longer we wait to engage on Ebola, the more limited our options will become, says Marco Rubio.
updated 7:53 AM EDT, Wed October 15, 2014
Democratic candidates who run from President Obama in red states where he is unpopular are making a big mistake, says Donna Brazile
updated 12:29 AM EDT, Thu October 16, 2014
At some 7 billion people, the world can sometimes seem like a crowded place. But if the latest estimates are to be believed, then in less than a century it is going to feel even more so -- about 50% more crowded, says Evan Fraser
updated 12:53 PM EDT, Mon October 20, 2014
Paul Callan says the Ebola situation is pointing up the need for better leadership
updated 6:45 PM EDT, Wed October 15, 2014
Nurses are the unsung heroes of the Ebola outbreak. Yet, there are troubling signs we're failing them, says John Sutter
updated 1:00 PM EDT, Wed October 15, 2014
Dean Obeidallah says it's a mistake to give up a business name you've invested energy in, just because of a new terrorist group
updated 7:01 PM EDT, Wed October 15, 2014
Fear of Ebola is contagious, writes Mel Robbins; but it's time to put the disease in perspective
updated 1:44 PM EDT, Tue October 14, 2014
Oliver Kershaw says that if Big Tobacco is given monopoly of e-cigarette products, public health will suffer.
updated 9:35 AM EDT, Sat October 18, 2014
Stop thinking your job will make you happy.
updated 10:08 PM EDT, Tue October 14, 2014
Ruben Navarrette says it's time to deal with another scandal involving the Secret Service — one that leads directly into the White House.
updated 7:25 AM EDT, Tue October 14, 2014
Americans who choose to fight for militant groups or support them are young and likely to be active in jihadist social media, says Peter Bergen
updated 9:03 AM EDT, Mon October 13, 2014
Stephanie Coontz says 11 years ago only one state allowed same sex marriage. Soon, some 60% of Americans will live where gays can marry. How did attitudes change so quickly?
updated 4:04 PM EDT, Tue October 14, 2014
Legalizing assisted suicide seems acceptable when focusing on individuals. But such laws would put many at risk of immense harm, writes Marilyn Golden.
updated 9:07 AM EDT, Mon October 13, 2014
Julian Zelizer says the issues are huge, but both parties are wrestling with problems that alienate voters
updated 6:50 PM EDT, Mon October 13, 2014
Mel Robbins says the town's school chief was right to cancel the season, but that's just the beginning of what needs to be done
updated 11:43 AM EDT, Sat October 11, 2014
He didn't discover that the world was round, David Perry writes. So what did he do?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT