Immunity

Last week, Congressman Issa bolstered the contempt charges against Attorney General Holder with incriminating admissions contained in sealed wiretap applications.  The admissions fatally undercut Holder's argument that he had not lied to Congress in December 2010 when he protested the ignorance of senior Justice Department officials of the most damning aspects of the "Fast and Furious" campaign.   That campaign involved, among other things, running guns into Mexico for the purpose of waiting until they had been used in a murder, then collecting their serial numbers after they had been abandoned at the scene, as was the established habit of cartel thugs.  The scheme ostensibly served a political effort to institute stricter gun control regulations by showing that U.S. guns were being funneled to Mexico to support criminal operations there.  Holder told Congress that the Justice Department never knowingly lost track of guns, and that the operation was shut down when they realized the failure.  Holder retracted this claim of ignorance ten months later, in October 2011, but has cited executive privilege in refusing to produce documents relevant to whether his initial claim was a deliberate lie.

In particular, Holder is concealing documents relevant to the facts revealed to senior Justice Department officials in the March 2010 wiretap applications, including emails.   The applications themselves are under seal by a federal judge in connection with the underlying criminal investigations of gun-running in which they were issued, but they were provided to the House Oversight Committee by an as-yet unidentified whistleblower.  Rep. Issa created a stir by reading summaries of the facts recited in the applications into the Congressional Record, relying on his immunity under the Constitution's "Speech and Debate Clause" to protect any statement made on the floor of Congress.  The summaries strongly suggested that the Justice Department knew as early as March 2010 that federal agents had abandoned surveillance of a straw-man purchaser in the process of running nearly 1,000 guns into Mexico, even though they then elected not to halt the operation until publicity exploded over the murder of Border Agent Brian Terry with one of them.  (The murder weapon was found by his body, just as might have been expected, and traced by its serial number to the "Fast and Furious" operation.)

A politically hostile watchdog group now claims that, although Issa may be immune from outside prosecution, he should be disciplined under internal House ethics rules.   This approach avoids the thorny separation-of-powers issues that would be raised by retaliation from the Justice Department.  The speech-and-debate immunity, designed to guard the separation of powers, is very strong.  It has led courts to dismiss claims of "invasion of privacy, slander and libel, civil rights violations, wiretapping, incitements to violence, violations of First Amendment rights, age discrimination, racial discrimination, sexual discrimination, retaliation for reporting sexual discrimination, larceny and fraud, and McCarthyism."  This leaves us with a fascinating battle of the privileges.  The executive privilege on which Holder relies is subject to well-known exceptions for Congressional investigations into wrongdoing.  Will Holder or his surrogates find that it is stronger, or weaker, than the Congressional speech-and-debate privilege?

None of this is to say that the House may not decide to discipline its own members if it believes they should not violate a federal court's seal on sensitive documents.  That may turn out to be an essentially political calculation, suggesting that Issa has little to fear from a vote in the current House.   It's possible that some House Republicans will not like the notion of a deliberate violation of a federal court seal, but on the other hand they may consider it overridden by the improper assertion of executive privilege and Justice Department cover-up that started all this.