These subpoenaed documents are the same ones over which Barack Obama asserted Executive Privilege to prevent from being released.
Concurrent with the civil lawsuit is an effort by a very effective Watchdog group to have the same documents released through a Freedom of Information Act (FOIA) request and it's causing Holder to react on a second front.
Via Judicial Watch:
Judicial Watch announced today that it filed a brief on January 15, 2013, in response to an Obama Department of Justice (DOJ) motion to indefinitely delay consideration of Judicial Watch’s Freedom of Information Act (FOIA) lawsuit seeking access to Operation Fast and Furious records withheld from Congress by President Obama under executive privilege on June 20, 2012 (Judicial Watch, Inc. v. U.S. Department of Justice (No. 1:12-cv-01510)).To Judicial Watch's argument, consider an exchange between Issa - in his role as a member of the House Judiciary Committee and Holder on December 8, 2011. In the exchange (audio only), Issa was pressing Holder to admit that if the documents relative to Fast & Furious after March of 2011 are not released, the Attorney General will be found in contempt.
Rather than respond substantively to Judicial Watch’s FOIA lawsuit, the DOJ argued in court that the lawsuit should be subject to a stay of proceedings because it is “ancillary” to a separate lawsuit filed by the House Oversight and Government Reform Committee against the DOJ. The Court “should let the process of negotiation and accommodation [between the House Committee and the DOJ] run its course, and then decide with the input of the parties whether and how this action may appropriately proceed at that time,” the DOJ argued, effectively abrogating the FOIA. The Obama DOJ even suggested that the Judicial Watch litigation might encourage the Congress to fight harder to get the same documents in separate litigation.
There are two very key points (the second is particularly important) expressed by Issa relative to these documents.
- Issa explains that Holder must cite a Constitutional exemption for refusing to produce the documents.
- Even if Holder magically cites an exemption, he is still required to produce a log of the documents.
To this point, Holder has done neither, which leaves Obama's assertion of Executive Privilege the lone justification for the American people not knowing the truth about Fast and Furious.
Of all the exchanges between Issa and Holder, this one may just be the best.