What's missing from the document dump

The Justice Department withholds documents showing White House role in prosecutor-purge testimony.

Published March 20, 2007 6:07PM (EDT)

As we noted earlier today, the documents the Justice Department has produced to the House Judiciary Committee show extensive efforts by Justice Department officials to limit the damage caused by firing eight U.S. attorneys and providing what is euphemistically known as "incomplete" information to Congress.

The documents contain relatively little evidence of White House efforts in the damage-control process. Does that mean the White House wasn't involved? Not exactly. In a letter accompanying its latest document dump, Acting Assistant Attorney General Richard Hertling says the Justice Department is simply not handing over to the House Judiciary Committee documents that might tell more about what the White House did.

"We are providing deliberative documents concerning the preparation of the congressional testimony by [Justice] Department officials in order to clarify the integrity of our process for preparing the testimony," Herling writes. "Except as previously indicated and consistent with long-standing Executive Branch practice, however, we are not providing other documents generated within the Executive Branch for the purpose of responding to congressional (and media) inquiries about the resignations. The appropriate functioning of the separation of powers requires that Executive Branch officials preserve the ability to communicate confidentially as they discuss how to respond to inquiries from a coordinate branch of government. Such robust internal communications would be chilled, if not halted, if they were disclosed, which would substantially impede any agency's ability to respond to congressional oversight requests. That would be detrimental to the operation of both branches and serve no useful purpose."

No useful purpose? Wouldn't members of Congress like to know -- aren't they entitled to know? -- the extent to which White House officials may have helped Justice Department officials mislead Congress about the circumstances surrounding the firing of federal prosecutors? It's awfully hard to understand any separation of powers distinction between "deliberative documents" from the Justice Department and "deliberative documents" from the White House. So why is the administration drawing that line? Having not seen the documents that aren't being produced, we can't know for sure. Our bet: It wouldn't be "useful" for the White House to let Congress see whatever "deliberative documents" it's hiding.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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