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The Law: Obama's Executive Privilege and Holder's Contempt: “Operation Fast and Furious”


  • AUTHOR'S NOTE: Thanks to Chris Edelson, Mort Rosenberg, Mark Rozell, and Mitch Sollenberger for valuable suggestions on this article. Some of the analysis in this article is drawn from Fisher's testimony on June 13, 2011, before the House Committee on Oversight and Government Reform with regard to committee subpoenas, and from his article “An Overbroad Executive Privilege Claim,” National Law Journal, July 30, 2012, pp. 34-35, available at


In his first use of executive privilege, President Barack Obama on June 20, 2012, denied Congress access to documents related to the “Fast and Furious” operation carried out by the Alcohol, Tobacco, and Firearms (ATF) agency. The program permitted more than two thousand assault guns to leave the United States and enter Mexico, leading to the deaths of hundreds of Mexicans. Initially, the Justice Department denied that ATF ever intended to have guns flow to Mexico. Ten months later the department conceded that its statement was “inaccurate.” Congressional efforts to obtain agency documents resulted in a House contempt citation against Attorney General Eric Holder, prompting Obama to invoke executive privilege.