Attorney General William Barr has received Special Counsel Robert Mueller‘s “confidential” Russia report and reserves the same right President Barack Obama‘s Attorney General Eric Holder once reserved in 2012 when responding to a congressional inquiry into the scandal known as “Fast and Furious.”
We already know that Barr can pick and choose what in the Mueller report goes public, but we also know that Congress is prepared to do whatever is necessary to challenge those decisions and get a full version of Mueller’s findings.
Eric Holder has already provided a template, however, on how an Attorney General may respond to requests for confidential information. In a letter to Obama from 2012, Holder recommended that Obama assert executive privilege to prevent Congress’ subpoena from getting confidential Department of Justice (DOJ) documents about Operation Fast and Furious.
Operation Fast and Furious involved the ATF and others who facilitated illegal gun sales to individuals connected to Mexican drug cartels in an effort to track both parties involved in the transaction. The DOJ Inspector General reported that nearly 2,000 firearms were illegally purchased for $1.5 million. It was also reported that weapons used in the murder of US Border Patrol Agent Brian Terry were linked to these sales.
“I am writing to request that you assert executive privilege with respect to confidential Department of Justice documents that are responsive to the subpoena issued by the Committee of Oversight and Government Reform of the United States House of Representatives on October 25, 2011,” Holder said.” The subpoena relates to the Committee’s investigation into Operation Fast and Furious, a law enforcement operation conducted by the Bureau of Alcohol, Tobacco, Firearms and Explosives and the United States Attorney’s Office for the District of Arizona to stem the illegal flow of firearms from the United States to drug cartels in Mexico.”
Holder said that the subpoena was overly broad and encroached on executive branch power.
“The Committee’s subpoena broadly sweeps in various groups of documents relating to both the conduct of Operation Fast and Furious and the Department’s response to congressional inquiries about that operation,” he continued, before listing three steps the DOJ took in response to prior congressional oversight. “I am very concerned that the compelled production to Congress of internal Executive Branch documents generated in the course of the deliberative process concerning its response to congressional oversight and related media inquiries would haver significant, damaging consequences.”
Holder cautioned against “substantial separation of powers concerns” and “potentially create an inbalance” between the legislative and executives branches. As a result, Holder recommenced that Obama assert executive privilege over requested documents.
“I respectfully request that you assert executive privilege over the identified documents,” he said. “This letter sets forth the basis for my legal judgment that you may properly do so.” Holder was cited for contempt.
Though Barr has promised transparency, it is possible that we could see something similar play out with the Mueller report. Congressional Democrats are already saying President Donald Trump can’t exert executive privilege to “hide wrongdoing.” Trump and his attorney Rudy Giuliani have long discussed the idea out in the open.
It’s worth mentioning that during his stint as Attorney General in the George H.W. Bush years, Barr advised the president to pardon multiple Iran-Contra affair crimes. Recall that in 1992 Bush pardoned former Secretary of Defense Caspar Weinberger for the various crimes he was alleged to have committed during the Iran-Contra affair–just before Weinberger was slated to go on trial for perjury and obstruction of justice. This final pardon–the sixth in a series of Iran-Contra related pardons–completed a clean sweep for the Iran-Contra criminals who were, in fact, Bush’s own alleged co-conspirators in the national scandal.
Barr said nine years later that he “felt [some] had been unjustly treated and [wondered] whether [others] felt that they would have been treated this way under standard Department guidelines.”
“I don’t remember going through the pardon office, but I did ask some of the seasoned professionals around the Department about this, asked them to look into it,” he said. “Based on those discussions, I went over and told the President I thought he should not only pardon Caspar Weinberger, but while he was at it, he should pardon about five others.”
Barr, near the same time in 1989, revealed some of his views about obstruction — one that is certainly relevant today, considering the Mueller probe started after an obstruction investigation was opened into the circumstances of Trump’s firing of FBI Director James Comey.
Thirty years ago, Barr, then assistant attorney general in the Office of Legal Counsel, wrote a memo that highlighted his concern about legislative “encroachments” on the executive branch’s power. Barr himself wrote that it was “[o]nly by consistently and forcefully resisting such congressional incursions can executive branch prerogatives be preserved.”
Barr put together a non-exhaustive list counting the ways the president’s power had been threatened. The third item on the list of 10 jumped off the page because Barr is complaining about “Attempts to Constrain the [President’s] Removal Power.”
Barr made clear that he thinks it is “essential” to the president’s power to be able to fire anyone. He wrote:
The President’s power to remove subordinates is essential to carrying out these responsibilities [of faithfully executing laws]. The constitutional limitations on congressional restrictions on the President’s removal authority “ensure that Congress does not interfere with the President’s exercise of the ‘executive power’ and his constitutionally appointed duty to ‘take care that the laws be faithfully executed’ under Article II.”
“Because the power to remove is the power to control, restrictions on removal power strike at the heart of the President’s power to direct the executive branch and perform his constitutional duties,” he continued. “In particular, the inability to remove officers erodes significantly the President’s responsibility to ‘take Care that the Laws be faithfully executed.’”
A second area that Barr identified is also relevant now: “Attempts to Gain Access to Sensitive Executive Branch Information.”
On this subject, Barr said, “Congress consistently attempts to obtain access to the most sensitive executive branch information and is not always receptive to arguments that the executive branch, like Congress and the courts, must enjoy some measure of protection for confidential exchanges of information if it is to function effectively.”
“In addition to overt efforts to obtain privileged information, Congress often includes in bills language that purports to require that ‘all information’ or ‘all reports’ regarding a specific subject be made available to a particular congressional commit tee or other entity that is not part of the executive branch,” he continued. “Such efforts should be resisted, however, as an unconstitutional encroachment on the President’s constitutional responsibility to protect certain information.”
[Image via Toya Sarno Jordan/Getty Images]