Skip to main content

Why stonewall Congress in Fast and Furious scandal?

By Mark J. Rozell and Mitchel A. Sollenberger, Special to CNN
June 28, 2012 -- Updated 1241 GMT (2041 HKT)
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
April 16, 2014 -- Updated 1642 GMT (0042 HKT)
Rick McGahey says Rep. Paul Ryan is signaling his presidential ambitions by appealing to hard core Republican values
April 16, 2014 -- Updated 1539 GMT (2339 HKT)
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
April 15, 2014 -- Updated 1849 GMT (0249 HKT)
Kathleen Blee says the KKK and white power or neo-Nazi groups give haters the purpose and urgency to use violence.
April 16, 2014 -- Updated 1156 GMT (1956 HKT)
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
April 16, 2014 -- Updated 1153 GMT (1953 HKT)
Frida Ghitis says President Obama needs to stop making empty threats against Russia and consider other options
April 15, 2014 -- Updated 2129 GMT (0529 HKT)
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?
April 15, 2014 -- Updated 1641 GMT (0041 HKT)
Danny Cevallos says families of the passengers on Malaysian Airlines Flight 370 need legal counsel
April 14, 2014 -- Updated 1523 GMT (2323 HKT)
David Frum says Russia is on a rampage of mischief while Western leaders and Western alliances charged with keeping the peace hem and haw
April 14, 2014 -- Updated 1156 GMT (1956 HKT)
Most adults make the mistakes of hitting the snooze button and of checking emails first thing in the morning, writes Mel Robbins
April 14, 2014 -- Updated 1754 GMT (0154 HKT)
David Wheeler says as middle-class careers continue to disappear, we need a monthly cash payment to everyone
April 14, 2014 -- Updated 1155 GMT (1955 HKT)
Democrats need to show more political spine when it comes to the issue of taxes.
April 14, 2014 -- Updated 1555 GMT (2355 HKT)
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
April 14, 2014 -- Updated 1317 GMT (2117 HKT)
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
April 13, 2014 -- Updated 1856 GMT (0256 HKT)
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?
April 11, 2014 -- Updated 1522 GMT (2322 HKT)
Philip Cook and Kristin Goss says the Pennsylvania stabbing attack, which caused grave injury -- but not death, carries a lesson on guns for policymakers
April 11, 2014 -- Updated 1906 GMT (0306 HKT)
Wikipedia lists 105 football movies, but all too many of them are forgettable, writes Mike Downey
April 11, 2014 -- Updated 1432 GMT (2232 HKT)
John Sutter and hundreds of iReporters set out to run marathons after the bombings -- and learned a lot about the culture of running
April 11, 2014 -- Updated 1649 GMT (0049 HKT)
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
April 11, 2014 -- Updated 1416 GMT (2216 HKT)
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
April 12, 2014 -- Updated 0121 GMT (0921 HKT)
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
April 10, 2014 -- Updated 1731 GMT (0131 HKT)
Rep. Paul Ryan says the Republican budget places its trust in the people, not in Washington
April 10, 2014 -- Updated 2128 GMT (0528 HKT)
Aaron David Miller says Obama isn't to blame for Kerry's lack of progress in resolving Mideast talks
April 14, 2014 -- Updated 1522 GMT (2322 HKT)
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
April 10, 2014 -- Updated 1632 GMT (0032 HKT)
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
April 11, 2014 -- Updated 1103 GMT (1903 HKT)
Simon Tisdall: Has John Kerry's recent track record left Russia's wily leader ever more convinced of U.S. weakness?
April 10, 2014 -- Updated 1640 GMT (0040 HKT)
Mel Robbins says Nate Scimio deserves credit for acting bravely in a frightening attack and shouldn't be criticized for posting a selfie afterward
April 9, 2014 -- Updated 1839 GMT (0239 HKT)
Wendy Townsend says the Rattlesnake Roundup -- where thousands of pounds of snakes are killed and tormented -- is barbaric
April 10, 2014 -- Updated 1345 GMT (2145 HKT)
Dr. Mary Mulcahy says doctors who tell their patients the truth risk getting bad ratings from them
April 9, 2014 -- Updated 1328 GMT (2128 HKT)
Peggy Drexler says the married Rep. McAllister, caught on video making out with a staffer, won't get a pass from voters who elected him as a Christian conservative with family values
April 9, 2014 -- Updated 1143 GMT (1943 HKT)
David Frum says the president has failed to react strongly to crises in Iran, Syria, Ukraine and Venezuela, encouraging others to act out
April 9, 2014 -- Updated 2057 GMT (0457 HKT)
Eric Liu says Paul Ryan gets it very wrong: The U.S.'s problem is not a culture of poverty, it is a culture of wealth that is destroying the American value linking work and reward
April 9, 2014 -- Updated 1151 GMT (1951 HKT)
Frida Ghitis writes: "We are still seeing the world mostly through men's eyes. We are still hearing it explained to us mostly by men."
April 10, 2014 -- Updated 1408 GMT (2208 HKT)
Chester Wisniewski says the Heartbleed bug shows how we're all tangled together, relying on each other for Internet security
April 9, 2014 -- Updated 1926 GMT (0326 HKT)
Danny Cevallos says an Ohio school that suspended a little kid for pointing his finger at another kid and pretending to shoot shows the growth in "zero tolerance" policies at school run amok
ADVERTISEMENT