Congress Holds Eric Holder in Contempt; Interview With South Carolina Congressman Trey Gowdy
ANDERSON COOPER, CNN ANCHOR: Good evening, everyone. It's 10:00 here on the East Coast. And we begin tonight "Keeping Them Honest" with big developments in a story that we've been following almost from day one, the bungled ATF operation called Fast and Furious. Now, developments could land the nation's top law enforcement official in contempt of Congress and perhaps set off a constitutional battle between Congress and the White House. Let me give you some background first. Fast and Furious, you may remember, let buyers purchase guns in the United States and smuggle them into New Mexico. The idea was to track the guns as they made their way inside Mexican drug cartels. Instead the ATF lost track of those guns in part because U.S. authorities never bothered to tell the Mexican authorities about the scheme. They never had a way to actually track the guns, that is, not until people started dying.</s>DREW GRIFFIN, CNN SPECIAL INVESTIGATIONS UNIT CORRESPONDENT: The only way you're going to find those guns in Mexico is where?</s>RENE JAQUEZ, ATF SUPERVISORY AGENT: At crime scenes. At the death -- at the site of somebody who's dead. At a gun battle between the police and the bad guys in which either the bad guy was killed and his gun was left at the scene or used during the commission of a crime in which the gun was left behind.</s>GRIFFIN: That makes no sense to me.</s>JAQUEZ: Between reasonable men within the law enforcement community, no, there is no reasonable explanation to let these guns walk.</s>COOPER: Well, two of those guns made their way back north to the scene where border agent Brian Terry was shot dead a year-and-a-half ago. He just finished buying Christmas presents for his family. Two months later, ATF agent Jaime Zapata was killed in Mexico by one of a batch of 10 firearms bought in Houston as part of Fast and Furious. Now lawyers for the family confirmed today that they'll be suing the Justice Department, but the big headlines today were in Washington, D.C. After initially cooperating with the House Oversight Committee, which is investigating Fast and Furious, Attorney General Eric Holder refused to turn over more internal Justice Department documents. In a letter today, the deputy attorney general, James Cole, notified the committee chairman, Darrell Issa, that President Obama was withholding them on the basis of executive privilege. Now, the move came after threats from the committee to cite Holder for contempt and negotiations yesterday between the attorney general and committee members. Today's decision to invoke executive privilege led Republicans on the committee to say their search for accountability is being stymied.</s>REP. TREY GOWDY (R), SOUTH CAROLINA: If Congress has time to look into Major League Baseball, the BCS and invite Stephen Colbert to come to a committee hearing, surely to goodness, we have time to get answers on a fundamentally flawed lethal investigation like Fast and Furious.</s>COOPER: Well, late today, Gowdy's committee voted along party lines to recommend the House issue a contempt citation against Holder. And Democrats accused Chairman Issa and his Republican committee colleagues of conducting a political witch hunt. Republicans suggest the administration is impeding the search for accountability and using executive privilege to do that. Keeping both sides honest, though, tonight, it's worth pointing out a few facts here. This is the first time that President Obama has invoked executive privilege. Back when Democrats controlled the House, and a Republican administration was claiming executive privilege for the sixth time, by the way, the sound bites were 180 degrees opposite. Back then, as House members debated contempt citations against two George W. Bush advisers, Republican members, including Darrell Issa, simply got up and walked out.</s>REP. JOHN BOEHNER (R), MINORITY LEADER: We will not stand here and watch this floor be abused for pure political grandstanding at the expense of our national security. We will -- we will -- we will not stand for this and we will not stay for this. And I would ask my House Republican colleagues and those who believe that we should be here protecting the American people not vote on this bill. Let's just get up and leave.</s>COOPER: That's the complete opposite of their position today. Also now keeping the White House honest, President Obama's views on executive privilege do seem to have changed an awful lot now that he's chief executive. Here's Senator Obama back in 2007 during that Bush showdown.</s>THEN-SEN. BARACK OBAMA (D), ILLINOIS: You know, there's been a tendency on the part of this administration to try to hide behind executive privilege every time there's something a little shaky that's taking place. And I think, you know, the administration would be best served by coming clean on this. I think the American people deserve to know what was going on there.</s>COOPER: Here to talk about where all this might lead, Republican Congressman Trey Gowdy, whom you heard from just a moment ago. Congressman, thanks for being with us. You said today President Obama that he is -- quote -- "either part of it or he's not." If he's part of it, then we've had a series of witnesses that have misled the committee. And if he's not part of it, then he has no business asserting executive privilege. What do you exactly mean by that statement? Are you implying that the president is involved in covering something up?</s>GOWDY: No, quite the opposite. We've had no one that has testified before either judiciary or oversight if the president had any role in Fast and Furious at all. He said he didn't know about it. And I take him at his word. My point was to more illustrate the absurdity of asserting executive privilege for something you had no role in. Executive privileges for conversations that are -- had with the chief executive so he can rely on people's counsel, and he doesn't have to worry about them being subpoenaed before a committee of Congress. He had no conversation --</s>COOPER: But that's not -- that's not actually true, though. I mean, Vice President Cheney talked -- used the executive privilege for discussions about energy policy. It was even used with Hillary Clinton in her role in the health care debate under the Clinton administration. So it doesn't necessarily mean the president was sitting in meetings.</s>GOWDY: Well, what does it mean then? I mean, it's executive privilege. It's not -- it has to mean something. It can't cover your entire administration or no one would have to turn over documents.</s>COOPER: One of your Democratic colleagues, Congressman Elijah Cummings, said today that Attorney General Holder is simply protecting documents that he's prohibited by law from producing and is in compliance with federal statute passed by both Houses of Congress, signed by the president of the United States. Clearly you voted to hold him in contempt of Congress. You disagree with that?</s>GOWDY: No, he's partially correct. I think the initial request was for wiretap applications, which rule 6-C of the Federal Rules of Criminal Procedure does not allow anyone to give to anyone who's not part of the investigation or the trial. So to the extent that the original request for documents was overly broad and included protected material, then Mr. Cummings is correct. Where he's not correct is after Chairman Issa narrowed the scope of documents to not include anything that was legally prohibited from being discovered, he's still not complied. What could possibly be protected about the drafting of a false letter to a committee of Congress?</s>COOPER: But back in the Bush administration when Cheney was talking about executive privilege because of discussions on energy policy and discussions with people from outside the White House even, Republicans rallied around him and said it's legitimate. Democrats -- I mean, it was very much a partisan issue, just as this is now. If it was OK, though, under the Bush administration, why isn't it OK now? What's the difference?</s>GOWDY: I -- I have never -- Anderson, I have never subscribed to that theory in life, which is why I may not be long for this town. I was a prosecutor back when that was going on. The notion that -- that it's OK for me to do it only because you did it has never been appealing to me. If it's wrong to do it now, it was wrong to do it then, and I would hope that a court or someone else would have intervened and said that you're wrong to assert executive privilege. The fact that a Republican does something doesn't mean I automatically agree with it. And in fact, I would be happy to have everyone who's had their fingerprints on wide receiver, Fast and Furious, any gun walking investigation comment. I don't think you would be able to tell much of a difference in the tone of my questions irrespective of their political persuasion.</s>COOPER: What happens next? I mean, this is going to go to a vote in the full House. How do you see this being brought to a resolution? Do you think it's going to wind up in the courts?</s>GOWDY: I hope not. I hope he gives us the documents. It's not a political exercise to me. I want to know how Fast and Furious happened. I want to know how a false letter was delivered to a committee of Congress. So I hope we don't get to that point because I hope the attorney general gives us the documents. If he doesn't, then yes, we'll vote on it on the floor of the House. And there are three different forms of contempt. There's the plenary powers of Congress, there's criminal contempt, there's civil contempt. If it's criminal, then it will be referred to the U.S. attorney for the District of Columbia, Ray (sic) Machen. If it's civil, it will go to a -- to a federal judge here in the District of Columbia.</s>COOPER: Congressman Gowdy, appreciate your time today. Thank you very much, sir.</s>GOWDY: Thank you.</s>COOPER: Senior legal analyst Jeffrey Toobin joins me now to take us through the legal ins and outs of executive privilege and this contempt vote. So, Jeff, you just heard the congressman saying, I take him at his word. He wasn't here under the Bush administration. He says he would have ruled the same way under the Bush administration as he -- as he believes now. But does executive privilege only apply to national security issues or issues that the president was directly having a conversation about?</s>JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: No. The courts have said it's about the internal deliberations of the executive branch. And as you pointed out, there are Supreme Court cases involving the vice president. There are many cases involving the president's advisers. You know, sometimes executive privilege is upheld, sometimes it's not. But the president himself doesn't have to be involved and national security doesn't have to be involved.</s>COOPER: Well, certainly some people are going to look at this and say, look, the president obviously has something to hide by invoking this executive privilege. You say not necessarily?</s>TOOBIN: Not necessarily because, you know, every president in the modern era since Richard Nixon, including Richard Nixon, have cited executive privilege. Sometimes --</s>COOPER: So explain the idea behind it.</s>TOOBIN: Right.</s>COOPER: The rationale behind it.</s>TOOBIN: The idea behind it is pretty simple. It's that the executive branch, the White House and the president and his or her advisers, need space to be able to consider all sorts of policy options without the worry that they will be subpoenaed to disclose exactly everything that they consider. Now the countervailing argument or issue is the Constitution says the legislative branch, the Congress, has the right to investigate, to engage in oversight for the executive branch. So those two ideas are in tension. And there are legitimate good faith fights over what's covered by executive privilege. And those have come up in every recent administration.</s>COOPER: There are those who would say, look, if there's nothing to hide, why invoke this, though? It's basically just on principle?</s>TOOBIN: It is on principle. I mean, at least that's what the Obama administration is asserting. And that's what the Bush administration asserted the last time we had this kind of conflict.</s>COOPER: Because the flip side of this is if you want to hide something, this is a good way to hide stuff?</s>TOOBIN: It is. And certainly the most famous case of all involving executive privilege was United States versus Nixon where the Supreme Court 9-0 in -- held that Nixon had to disclose the White House tapes. And those turned out to be extremely incriminating and led directly to his resignation. So ever since Nixon, the innovation of executive privilege has had kind of a nasty taint. And it's sort of -- it's guilt by association with the most corrupt modern president.</s>COOPER: So basically you think this kind of goes away in the courts?</s>TOOBIN: I think --</s>COOPER: And kind of gets lost in the election hoopla?</s>TOOBIN: I absolutely do. I think this will not have a neat resolution. It's embarrassing for Eric Holder. But I don't think he's going to be found in contempt, that he's going to be led away in handcuffs. This is just going to be another political dispute. And if people remember at all at -- they'll remember, 23 Republicans were for it, 17 Democrats were against it.</s>COOPER: Jeff Toobin, thanks. Well, let us know what you think. We're on Facebook. Follow me on Twitter. We're talking about it right now on Twitter @AndersonCooper. The jury in the Sandusky child sex abuse trial is expected to get the case tomorrow. The defense rested their case earlier today. Sandusky did not take the stand after all. Clearly his lawyers seem to have made the right call, at least according to a lot of experts who are following this. Jason Carroll was in the courtroom throughout the trial. He'll recap the key testimony. And our legal panel, Mark Geragos and Marcia Clark, weigh in next.