ASSERTION OF EXECUTIVE PRIVILEGE OVER DOCUMENTS
GENERATED IN RESPONSE TO CONGRESSIONAL
INVESTIGATION INTO OPERATION FAST AND FURIOUS
Executive privilege may properly be asserted in response to a congressional subpoena seeking
internal Department of Justice documents generated in the course of the deliberative process concerning
the Department’s response to congressional and related media inquiries into Operation Fast and
Furious.
June 19, 2012
THE PRESIDENT
THE WHITE HOUSE
DEAR MR. PRESIDENT: I am writing to request that you assert executive privilege with
respect to confidential Department of Justice (“Department”) documents that are responsive to
the subpoena issued by the Committee on Oversight and Government Reform of the United
States House of Representatives (“Committee”) on October 11, 2011. 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 (“ATF”) 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 (“Fast and Furious”). The Committee has scheduled a
meeting for June 20, 2012, to vote on a resolution holding me in contempt of Congress for
failing to comply with the subpoena.
I.
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. In recognition of the seriousness of the Committee’s concerns
about both the inappropriate tactics used in Fast and Furious and the inaccuracies concerning the
use of those tactics in the letter that the Department sent to Senator Grassley on February 4, 2011
(“February 4 Letter”), the Department has taken a number of significant steps in response to the
Committee’s oversight. First, the Department has instituted various reforms to ensure that it
does not repeat these law enforcement and oversight mistakes. Second, at my request the
Inspector General is investigating the conduct of Fast and Furious. And third, to the extent
consistent with important Executive Branch confidentiality and separation of powers interests
affected by the Committee’s investigation into ongoing criminal investigations and prosecutions,
as well as applicable disclosure laws, the Department has provided a significant amount of
information in an extraordinary effort to accommodate the Committee’s legitimate oversight
interests, including testimony, transcribed interviews, briefings and other statements by
Department officials, and all of the Department’s internal documents concerning the preparation
of the February 4 Letter.
The Committee has made clear that its contempt resolution will be limited to internal
Department “documents from after February 4, 2011, related to the Department’s response to
Congress.” Letter for Eric H. Holder, Jr., Attorney General, from Darrell E. Issa, Chairman,
Opinions of the Office of Legal Counsel in Volume 36
Committee on Oversight and Government Reform, U.S. House of Representatives at 1-2
(June 13, 2012) (“Chairman’s Letter”). I am asking you to assert executive privilege over these
documents. They were not generated in the course of the conduct of Fast and Furious. Instead,
they were created after the investigative tactics at issue in that operation had terminated and in
the course of the Department’s deliberative process concerning how to respond to congressional
and related media inquiries into that operation.
In view of the significant confidentiality and separation of powers concerns raised by
the Committee’s demand for internal documents generated in response to the Committee’s
investigation, we consider the Department’s accommodations regarding the preparation of the
February 4 Letter to have been extraordinary. Despite these accommodations, however, the
Committee scheduled a vote on its contempt resolution. At that point, the Department offered
an additional accommodation that would fully address the Committee’s remaining questions.
The Department offered to provide the Committee with a briefing, based on documents that the
Committee could retain, explaining how the Department’s understanding of the facts of Fast
and Furious evolved during the post-February 4 period, as well as the process that led to the
withdrawal of the February 4 Letter. The Committee, however, has not accepted the
Department’s offer and has instead elected to proceed with its contempt vote.
As set forth more fully below, 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
have significant, damaging consequences: It would inhibit the candor of such Executive Branch
deliberations in the future and significantly impair the Executive Branch’s ability to respond
independently and effectively to congressional oversight. This would raise substantial separation
of powers concerns and potentially create an imbalance in the relationship between these two
co-equal branches of the Government. Consequently, as the head of the Department of Justice,
I respectfully request that you assert executive privilege over the identified documents.
This letter sets forth the basis for my legal judgment that you may properly do so.
II.
Executive privilege is “fundamental to the operation of Government and inextricably
rooted in the separation of powers under the Constitution.” United States v. Nixon, 418 U.S. 683,
708 (1974). It is “a necessary corollary of the executive function vested in the President by
Article II of the Constitution.” Congressional Requests for Confidential Executive Branch
Information, 13 Op. O.L.C. 153, 154 (1989) (“Congressional Requests Opinion”) (opinion of
Assistant Attorney General William P. Barr); see U.S. Const. art. II, § 1, cl. 1 (“The executive
Power shall be vested in a President of the United States of America.”); U.S. Const. art. II, § 3
(The President shall “take Care that the Laws be faithfully executed . . . .”). Indeed, executive
privilege “has been asserted by numerous Presidents from the earliest days of our Nation, and
it was explicitly recognized by the Supreme Court in United States v. Nixon.” Congressional
Requests Opinion, 13 Op. O.L.C. at 154.
The documents at issue fit squarely within the scope of executive privilege. In
connection with prior assertions of executive privilege, two Attorneys General have advised
the President that documents of this kind are within the scope of executive privilege. See Letter
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Assertion of Executive Privilege over Documents Generated in Response to
Congressional Investigation into Operation Fast and Furious
for the President from Paul D. Clement, Solicitor General and Acting Attorney General, Re:
Assertion of Executive Privilege Concerning the Dismissal and Replacement of U.S. Attorneys
at 6 (June 27, 2007) (“U.S. Attorneys Assertion”) (“[C]ommunications between the Department
of Justice and the White House concerning . . . possible responses to congressional and media
inquiries about the U.S. Attorney resignations . . . clearly fall within the scope of executive
privilege.”); Assertion of Executive Privilege Regarding White House Counsel’s Office
Documents, 20 Op. O.L.C. 2, 3 (1996) (“WHCO Documents Assertion”) (opinion of Attorney
General Janet Reno) (concluding that “[e]xecutive privilege applies” to “analytical material or
other attorney work-product prepared by the White House Counsel’s Office in response to the
ongoing investigation by the Committee”).
It is well established that “[t]he doctrine of executive privilege . . . encompasses
Executive Branch deliberative communications.” Letter for the President from Michael B.
Mukasey, Attorney General, Re: Assertion of Executive Privilege over Communications
Regarding EPA’s Ozone Air Quality Standards and California’s Greenhouse Gas Waiver
Request at 2 (June 19, 2008) (“EPA Assertion”); see also, e.g., U.S. Attorneys Assertion at 2;
Assertion of Executive Privilege with Respect To Clemency Decision, 23 Op. O.L.C. 1, 1-2
(1999) (“Clemency Assertion”) (opinion of Attorney General Janet Reno). The threat of
compelled disclosure of confidential Executive Branch deliberative material can discourage
robust and candid deliberations, for “[h]uman experience teaches that those who expect public
dissemination of their remarks may well temper candor with a concern for appearances and for
their own interests to the detriment of the decisionmaking process.” Nixon, 418 U.S. at 705.
Thus, Presidents have repeatedly asserted executive privilege to protect confidential Executive
Branch deliberative materials from congressional subpoena. See, e.g., EPA Assertion at 2-3;
Letter for the President from Michael B. Mukasey, Attorney General, Re: Assertion of Executive
Privilege Concerning the Special Counsel’s Interviews of the Vice President and Senior White
House Staff at 2 (July 15, 2008) (“Special Counsel Assertion”); Letter for the President from
John Ashcroft, Attorney General, Re: Assertion of Executive Privilege with Respect to
Prosecutorial Documents at 2 (Dec. 10, 2001) (“Prosecutorial Documents Assertion”);
Clemency Assertion, 23 Op. O.L.C. at 1-4; Assertion of Executive Privilege in Response to
a Congressional Subpoena, 5 Op. O.L.C. 27, 29-31 (1981) (“1981 Assertion”) (opinion of
Attorney General William French Smith).
Because the documents at issue were generated in the course of the deliberative process
concerning the Department’s responses to congressional and related media inquiries into Fast
and Furious, the need to maintain their confidentiality is heightened. Compelled disclosure of
such material, regardless of whether a given document contains deliberative content, would raise
“significant separation of powers concerns,” WHCO Documents Assertion, 20 Op. O.L.C. at 3,
by “‘significantly impair[ing]’” the Executive Branch’s ability to respond independently and
effectively to matters under congressional review. U.S. Attorneys Assertion at 6 (“the ability of
the Office of the Counsel to the President to assist the President in responding to [congressional
and related media] investigations ‘would be significantly impaired’ if a congressional committee
could review ‘confidential documents prepared in order to assist the President and his staff in
responding to an investigation by the committee seeking the documents’”) (quoting WHCO
Documents Assertion, 20 Op. O.L.C. at 3) (alterations omitted). See generally The
Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124,
126-28, 133-35 (1996) (explaining that, under Supreme Court case law, congressional action
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that interferes with the functioning of the Executive Branch, including “attempts to dictate the
processes of executive deliberation,” can violate general separation of powers principles);
Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977) (congressional enactment
that “disrupts the proper balance between the coordinate branches” may violate the separation
of powers).
Congressional oversight of the process by which the Executive Branch responds to
congressional oversight inquiries would create a detrimental dynamic that is quite similar to
what would occur in litigation if lawyers had to disclose to adversaries their deliberations about
the case, and specifically about how to respond to their adversaries’ discovery requests. As the
Supreme Court recognized in establishing the attorney work product doctrine, “it is essential
that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing
parties and their counsel.” Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). Were attorney
work product “open to opposing counsel on mere demand,” the Court explained, “[i]nefficiency,
unfairness and sharp practices would inevitably develop in the giving of legal advice and in the
preparation of cases for trial . . . , [a]nd the interests of the clients and the cause of justice would
be poorly served.” Id. at 511.
Similarly, in the oversight context, as the Department recognized in the prior
administration, a congressional power to request information from the Executive Branch and
then review the ensuing Executive Branch discussions regarding how to respond to that request
would chill the candor of those Executive Branch discussions and “introduce a significantly
unfair imbalance to the oversight process.” Letter for John Conyers, Jr., Chairman, Committee
on the Judiciary, U.S. House of Representatives, and Linda T. Sanchez, Chairwoman,
Subcommittee on Commercial and Administrative Law, Committee on the Judiciary, U.S. House
of Representatives, from Richard A. Hertling, Acting Assistant Attorney General, Office
of Legislative Affairs at 3 (Mar. 26, 2007). Such congressional power would disserve both
Branches and the oversight process itself, which involves two co-equal branches of government
and, like litigation, often is, and needs to be, adversarial. We recognize that it is essential to
Congress’s ability to interact independently and effectively with the Executive Branch that
the confidentiality of internal deliberations among Members of Congress and their staffs be
protected against incursions by the Executive Branch. See Gravel v. United States, 408 U.S.
606, 616 (1972) (“The Speech or Debate Clause was designed to assure a co-equal branch of
the government wide freedom of speech, debate, and deliberation without intimidation or
threats from the Executive Branch.”). It is likewise essential to the Executive Branch’s ability
to respond independently and effectively to matters under congressional review that the
confidentiality of internal Executive Branch deliberations be protected against incursions
by Congress.
Moreover, there is an additional, particularized separation of powers concern here
because the Committee’s inquiry into Fast and Furious has sought information about ongoing
criminal investigations and prosecutions. Such information would itself be protected by
executive privilege, see, e.g., Assertion of Executive Privilege in Response to Congressional
Demands for Law Enforcement Files, 6 Op. O.L.C. 31, 32 (1982) (opinion of Attorney General
William French Smith) (“[I]t has been the policy of the Executive Branch throughout this
Nation’s history generally to decline to provide committees of Congress with access to or copies
of law enforcement files except in the most extraordinary circumstances.”). Consequently,
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Assertion of Executive Privilege over Documents Generated in Response to
Congressional Investigation into Operation Fast and Furious
the Department’s deliberations about how to respond to these congressional inquiries involved
discussion of how to ensure that critical ongoing law enforcement actions are not compromised
and that law enforcement decisionmaking is not tainted by even the appearance of political
influence. See, e.g., id. at 33 (noting “substantial danger that congressional pressures will
influence the course of the investigation . . . [and] potential damage to proper law enforcement
which would be caused by the revelation of sensitive techniques, methods, or strategy”)
(quotation marks omitted). Maintaining the confidentiality of such candid internal discussions
helps preserve the independence, integrity, and effectiveness of the Department’s law
enforcement efforts.
III.
A congressional committee “may overcome an assertion of executive privilege only
if it establishes that the subpoenaed documents are ‘demonstrably critical to the responsible
fulfillment of the Committee’s functions.’” Special Counsel Assertion at 5-6 (quoting Senate
Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974)
(en banc) (emphasis added)); see also, e.g., U.S. Attorneys Assertion at 2 (same); Clemency
Assertion, 23 Op. O.L.C. at 2 (same); Nixon, 418 U.S. at 707 (“[I]t is necessary to resolve
those competing interests in a manner that preserves the essential functions of each branch.”).
“Those functions must be in furtherance of Congress’s legitimate legislative responsibilities,”
Special Counsel Assertion at 5 (emphasis added), for “[c]ongressional oversight of Executive
Branch actions is justifiable only as a means of facilitating the legislative task of enacting,
amending, or repealing laws.” 1981 Assertion, 5 Op. O.L.C. at 30-31. See also, e.g., Special
Counsel Assertion at 5; U.S. Attorneys Assertion at 2-3; McGrain v. Daugherty, 273 U.S. 135,
176 (1927) (congressional oversight power may be used only to “obtain information in aid
of the legislative function”); Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504 n.15 (1975)
(“The subject of any [congressional] inquiry always must be one on which legislation could be
had.”) (quotation marks omitted).
A.
The Committee has not satisfied the “demonstrably critical” standard with respect to
the documents at issue. The Committee has said that it needs the post-February 4 documents
“related to the Department’s response to Congress” concerning Fast and Furious in order to
“examine the Department’s mismanagement of its response to Operation Fast and Furious.”
Chairman’s Letter at 1-2. More specifically, the Committee has explained in the report that it
is scheduled to consider at its June 20 contempt meeting that it needs these documents so that it
can “understand what the Department knew about Fast and Furious, including when and how
it discovered its February 4 letter was false, and the Department’s efforts to conceal that
information from Congress and the public.” Comm. on Oversight and Gov’t Reform, U.S.
House of Representatives, Report at 33 (June 15, 2012). House leaders have similarly
communicated that the driving concern behind the Committee’s scheduled contempt vote is
to determine whether Department leaders attempted to “mislead or misinform Congress” in
response to congressional inquiries into Fast and Furious. See Letter for Eric H. Holder, Jr.,
Attorney General, from John A. Boehner, Speaker, U.S. House of Representatives, et al. at 1
(May 18, 2012) (“Speaker’s Letter”).
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At the threshold, it is not evident that the Committee’s asserted need to review the
management of the Department’s response to congressional inquiries furthers a legislative
function of Congress. See WHCO Documents Assertion, 20 Op. O.L.C. at 4 (noting the question
of “the extent of Congress’s authority to conduct oversight of the executive branch’s response
to oversight . . . must be viewed as unresolved as a matter of law in light of the requirement that
there be a nexus to Congress’s legislative authority”). In any event, the purported connection
between the congressional interest cited and the documents at issue is now highly attenuated
as a result of the Department’s extraordinary efforts to accommodate the Committee’s interest
in this regard. Through these efforts, the Department has amply fulfilled its constitutional
“obligation . . . to make a principled effort to acknowledge, and if possible to meet, the
[Committee’s] legitimate needs.” 1981 Assertion, 5 Op. O.L.C. at 31; see also, e.g., United
States v. AT&T, 567 F.2d 121, 127, 130 (D.C. Cir. 1977) (“[E]ach branch should take cognizance
of an implicit constitutional mandate to seek optimal accommodation through a realistic
evaluation of the needs of the conflicting branches in the particular fact situation. . . .
Negotiation between the two branches should thus be viewed as a dynamic process affirmatively
furthering the constitutional scheme.”).
Specifically, the Department has already shared with the Committee over 1300 pages
of documents concerning the drafting of the February 4 Letter, in acknowledgment that the
February 4 Letter contained inaccurate information. In addition, numerous Department officials
and employees, including the Attorney General, have provided testimony and other statements
concerning both the conduct of Fast and Furious and the Department’s preparation and
withdrawal of the February 4 Letter. This substantial record shows that the inaccuracies in the
February 4 Letter were the inadvertent product of the fact that, at the time they were preparing
that letter, neither Department leaders nor the heads of relevant Department components on
whom Department leaders reasonably relied for information knew the correct facts about the
tactics used in Fast and Furious. Department leaders first learned that flawed tactics may have
been used in Fast and Furious when public allegations about such tactics surfaced in early 2011,
after such tactics had been discontinued. But Department leaders were mistakenly assured by
the heads of relevant Department components that those allegations were false. As the
Department collected and reviewed documents to provide to the Committee during the months
after submitting the February 4 Letter, however, Department leaders came to understand that
Fast and Furious was in fact fundamentally flawed and that the February 4 Letter may have
been inaccurate. While the Department was developing that understanding, Department officials
made public statements and took other actions alerting the Committee to their increasing concern
about the tactics actually used in Fast and Furious and the accuracy of the February 4 Letter.
When the Department was confident that it had a sufficient understanding of the factual record,
it formally withdrew the February 4 Letter. All of this demonstrates that the Department did not
in any way intend to mislead the Committee.
The Department continued its extraordinary efforts at accommodating the Committee by
recently offering to provide the Committee with a briefing, based on documents that the
Committee could retain, explaining further how the Department’s understanding of the facts of
Fast and Furious evolved during the post-February 4 period, as well as the process that led to
the withdrawal of the February 4 Letter. The Department believes that this briefing, and the
accompanying documents, would have fully addressed what the Committee described as its
remaining concerns related to the February 4 Letter and the good faith of the Department in
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Assertion of Executive Privilege over Documents Generated in Response to
Congressional Investigation into Operation Fast and Furious
responding to the Committee’s investigation. The Committee, however, has not accepted
this offer of accommodation.
Finally, the Committee’s asserted need for post-February 4 documents is further
diminished by the Inspector General’s ongoing investigation of Fast and Furious, which was
undertaken at my request. As an Executive Branch official, the Inspector General may obtain
access to documents that are privileged from disclosure to Congress. The existence of this
investigation belies any suspicion that the Department is attempting to conceal important facts
concerning Fast and Furious from the Committee. Moreover, in light of the Inspector General’s
investigation, congressional oversight is not the only means by which the management of the
Department’s response to Fast and Furious may be scrutinized.
In brief, the Committee received all documents that involved the Department’s
preparation of the February 4 Letter. The Committee’s legitimate interest in obtaining
documents created after the February 4 Letter is highly attenuated and has been fully
accommodated by the Department. The Committee lacks any “demonstrably critical” need
for further access to the Department’s deliberations to address concerns arising out of the
February 4 Letter.
B.
The Department’s accommodations have concerned only a subset of the topics addressed
in the withheld post-February 4 documents. The documents and information provided or offered
to the Committee address primarily the evolution of the Department’s understanding of the facts
of Fast and Furious and the process that led to the withdrawal of the February 4 Letter. Most of
the withheld post-February 4 documents, however, relate to other aspects of the Department’s
response to congressional and related media inquiries, such as procedures or strategies for
responding to the Committee’s requests for documents and other information. The Committee
has not articulated any particularized interest in or need for documents relating to such topics,
let alone a need that would further a legislative function.
“Broad, generalized assertions that the requested materials are of public import are
simply insufficient under the ‘demonstrably critical’ standard.” U.S. Attorneys Assertion at 3;
see also, e.g., Congressional Requests Opinion, 13 Op. O.L.C. at 160 (“‘A specific, articulated
need for information will weigh substantially more heavily in the constitutional balancing than
a generalized interest in obtaining information.’”) (quoting 1981 Assertion, 5 Op. O.L.C. at 30)).
Moreover, “Congress’s legislative function does not imply a freestanding authority to gather
information for the sole purpose of informing ‘the American people.’” Special Counsel
Assertion at 6. The “only informing function” constitutionally vested in Congress “‘is that of
informing itself about subjects susceptible to legislation, not that of informing the public.’” Id.
(quoting Miller v. Transamerican Press, Inc., 709 F.2d 524, 531 (9th Cir. 1983)). In the absence
of any particularized legitimate need, the Committee’s interest in obtaining additional post-
February 4 documents cannot overcome the substantial and important separation of powers
and Executive Branch confidentiality concerns raised by its demand.
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****
In sum, when I balance the Committee’s asserted need for the documents at issue against
the Executive Branch’s strong interest in protecting the confidentiality of internal documents
generated in the course of responding to congressional and related media inquiries and the
separation of powers concerns raised by a congressional demand for such material, I conclude
that the Committee has not established that the privileged documents are demonstrably critical
to the responsible fulfillment of the Committee’s legitimate legislative functions.
IV.
For the reasons set forth above, I have concluded that you may properly assert executive
privilege over the documents at issue, and I respectfully request that you do so.
Sincerely,
/s/
ERIC H. HOLDER, JR.
Attorney General
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