Tomorrow, the House is expected to vote on whether to hold Attorney General Eric Holder in contempt of Congress for refusing to turn over internal deliberative documents related to Operation Fast and Furious.
Last week, the attorney general -- who has testified on this matter on nine separate occasions and has provided more than 7,600 pages of documents already -- offered to resolve the dispute by turning over to the Committee on Oversight and Government Reform internal deliberative documents responsive to the Committee's key question. The Department of Justice stood ready to brief the Committee and to answer any questions that might come up regarding the documents. Chairman Issa responded by saying, "I can't accept the [deal the attorney general offered]. No other chairman would."
I must beg to differ. As a former Chairman of the House Judiciary Committee, I accepted a similar deal with the Bush administration. The issue arose in connection with my investigation into the involvement of the Justice Department and the White House into the peremptory firing of nine U.S. Attorneys in early 2007.
As a former chair of both the Committee on Government Operations and the House Judiciary Committee, I take a back seat to no one in the vigor and completeness of my investigations. At the same time, I appreciate the need for both Democratic and Republican administrations to have some breathing space when they respond to congressional oversight. In the U.S. Attorney firings investigation, we were interested in learning how the firings came about, who made the decisions, and why. We were less interested in obtaining documents detailing what members of the Bush administration thought about our efforts.
With regard to the Justice Department, we worked out an agreement to access certain internal deliberative documents that were created before the Judiciary Committee's oversight investigation began. These documents were germane to our efforts to learn why the United States Attorneys were fired and who was responsible for it.
Getting to the bottom of White House involvement in the scandal proved more difficult. President Bush made a blanket assertion of executive privilege, refusing to turn over any White House documents or make any key administration witnesses available for testimony. The Judiciary Committee successfully challenged President Bush's sweeping privilege assertion in court. In March 2009, after the administration changed, we negotiated an accommodation with representatives of the former president that met our needs and respected theirs.
Our Agreement of Accommodation provided that the Judiciary Committee would receive White House documents generated prior to the commencement of our investigation on March 8, 2007, but we were only able to review (without retaining copies) a very small subset of the White House documents generated after that date. In short, we were able to conduct legitimate oversight into the actual allegations regarding the U.S. Attorney firings while respecting the Administration's ability to deliberate in confidence over how to respond to my investigation.
This basic respect for confidential communications is well established. In the 1974 U.S. v. Nixondecision, the Supreme Court reasoned that compelled disclosure of deliberative material would discourage executive branch officials from giving candid advice, because "those who expect public dissemination of their remarks may temper candor with a concern for appearances and for their own interests to the detriment of the decision making process." From President Reagan to President Obama, every administration has sought to protect this material and, for the most part, Congress has balanced its oversight needs with the need of executive branch officials to advise the president in confidence.
There are two principal differences between my deal with the Bush administration and the deal Attorney General Holder has offered to the Oversight Committee. First, it took us far longer, and required far more legal process, to bring the Bush administration to the point where it would agree to the deal. Attorney General Holder has sought, in good faith, to head off this conflict for weeks now. Second, Attorney General Holder has offered to turn over outright (rather than just make available for review) some of the documents that were generated in the course of the Department's efforts to respond to the Oversight Committee's demands.
Attorney General Holder has made a compelling offer -- one that serves the needs of the investigation, and one that is quite similar to the deal I accepted last Congress.