This is a rush transcript from "On the Record," June 26, 2012. This copy may not be in its final form and may be updated.
GRETA VAN SUSTEREN, FOX NEWS HOST: Right now: Move over, Attorney General Holder! Congressman Darrell Issa now passing you by, taking the Fast and Furious fight around the attorney general, straight to President Obama. The House Oversight chair is challenging the president's claim of executive privilege.
In a letter to President Obama, Chairman Issa writes, in part, "Your privilege assertion means one of two things. Either you or your most senior advisers were involved in managing Operation Fast and Furious and the fallout from it, or you are asserting a presidential power that you know to be unjustified solely for the purpose of further obstructing a Congressional investigation."
And today, the White House firing back at Chairman Issa, calling his analysis "absurd." And in about 36 hours, the full House is expected to vote on whether to hold Attorney General Eric Holder in contempt. And just a short time ago, there were two last-ditch meetings to try avoid that vote. But word tonight those meetings failed and the vote will go on.
Congressman Trey Gowdy joins us. Good evening, sir.
REP. TREY GOWDY, R-S.C./HOUSE OVERSIGHT COMMITTEE: Good evening, Greta. How are you?
VAN SUSTEREN: Very well. So do you agree with Chairman Issa that there is some White House involvement, even the accusation towards -- to suggest that President Obama is more involved in Fast and Furious than previously disclosed?
GOWDY: Well, Greta, there are three forms of executive privilege, two of which would directly implicate the White House if it was the appropriate invocation of executive privilege. So I took Chairman Issa's letter to be kind of like a legal brief -- Which version of executive privilege are you relying on? The first two directly implicates you, despite the fact that you, the president, have said you had nothing to do with Fast and Furious.
The third version of executive privilege, which is a common law version, is weak as water. It doesn't apply to Congress and it doesn't apply when you're withholding or covering up information. So I took the letter to be a genuine request for clarification on which version of executive privilege you're relying on.
VAN SUSTEREN: All right, is it an effort to, for lack of better words, trying to box the president in, either the president asserts the first of two executive privileges and puts the privilege within the universe of those two, in which case, he says he is involved in some fashion -- could just have knowledge of it -- or are you trying to box him in to say that he had nothing to do with it and that the deliberative process executive privilege doesn't apply here, so give us the materials?
GOWDY: Well, you know, Greta, the phrase "boxing in" has such a nefarious undertone to it. I took his letter, which I've read twice and was with Chairman Issa tonight, to be a good faith request for more information.
You waited eight months to rely on executive privilege in the first place. You did it 10 minutes before we were set to mark up contempt of Congress. And in your letter, you didn't tell us which version of executive privilege you're relying on.
And Greta, because you were a very good attorney, you know you only have three choices. Either you were directly part of the conversations or someone high up in the White House was directly part of the conversations related either to Fast and Furious or the letter, or thirdly, you're relying on this deliberative process executive privilege, which doesn't apply to Congress and can't withstand scrutiny when it involves the withholding of documents.
So tell us which of those three versions you're relying upon, and then we'll defeat it. And make no mistake, we have to defeat it. We're going to vote on this on Thursday. And some of our colleagues who may be in the middle may come up to us, particularly Democrats, and say, Well, tell us about executive privilege. Why doesn't it apply?
It'd be helpful to us to know which of those three versions -- even at this late hour, which of the three versions the president's relying on.
VAN SUSTEREN: All right, it's interesting, in this letter to the president, and the fact that it's not to the attorney general, but it's from Chairman Issa directly to the president, he talks about how the attorney general has called this an election year tactic, and then he comes back and says in the letter that you've been asking for this material for a long time.
Nonetheless, there is some criticism that this is a political move in an election year. Do you have a response to that?
GOWDY: Well, I mean, what else can they say? I mean, they're not going to give us the documents. They're certainly not going to admit that we're right. What else can they come back with?
But the truth, Greta, is this. This investigation started shortly after I was sworn in, almost a year-and-a-half ago. And here we are on the precipice of another general election. That's how long this investigation has been going on.
So the fact that we may be butting up against another election cycle is the president's fault. It's not ours. And it's the attorney general's fault. If he'd complied with the subpoena when it was issued to him last October, you and I wouldn't be having this conversation. So to the extent that this involves an election year, Eric Holder and the White House need look no further than themselves.
VAN SUSTEREN: What happened at the meeting today? And is there any chance between -- is any other meeting scheduled between now and Thursday? But what happened today?
GOWDY: Well, I was not part of the meeting and as such, cannot fully confirm that it took place. But hypothetically, if that meeting did take place, there were no new offers made. It was the same offer repeated again, which is essentially, We'll summarize the documents to you. You have to take contempt of Congress off the table.
Greta, I don't know when the last time you bought a used car over the telephone was, but those usually don't work out very well. For me to strike a deal with someone before I have any idea what the evidence shows would be malfeasance.
VAN SUSTEREN: What I understand, that so-called hypothetical meeting that we're not admitting happened, may have hypothetically happened at the White House and hypothetically some documents, not all documents, were shown, hypothetically, to the Republican staff members who were there.
Do you know anything hypothetically about that?
GOWDY: Your sources are probably close to being correct. But Greta, the fact remains, do I want to give 100 percent of the answers to Brian Terry's family? Do I want to give 100 percent of the answers the next time I'm privileged to come on your show? Will you settle for half of it? Will you settle for a third of it?
My guess is you're not going to cut me any slack if I agree to take less than the full panoply of documents, nor should you. And if you are Brian Terry's family or the family members of Mexican citizens who've been murdered, are you really going to accept less than the full compliance with the subpoena?
So if this meeting took place and there were no new offers -- I'll make it very clear for the White House. I'll make it very clear for them. The subpoena was valid and legitimate. Comply with all of it. Quit asking us to negotiate in the dark or buy a used car over the telephone. We're not going to do it.
The vote's coming on Thursday. Comply with the subpoena, or you'll be on the wrong side of history.
VAN SUSTEREN: Have you done any sort of informal head count whether you're going to lose any Republican votes on Thursday and whether you're going to gain any Democratic votes?
GOWDY: I think we will gain Democratic votes. I'm not aware of any Republicans that will vote no on contempt. But we had a meeting this afternoon. It's called a whip meeting. And Whip McCarthy got Chairman Issa and I to explain to our colleagues we are not voting on Fast and Furious on Thursday. We're not voting on whether or not there's liability or culpability to be assigned.
We're voting on the fact that the attorney general refuses to comply with a subpoena. So we're not getting into the facts of Fast and Furious. This is just whether or not you believe Congress has a right to provide oversight.
And I would expect and hope -- and call me naive, but I would expect and hope some of our same colleagues who were very critical of the Bush administration for not turning over documents to stand up for the institution of the House and our responsibility to provide oversight.
So we'll pick up more Democrats than we lose Republicans. And it will pass if we do not get the documents before the vote on Thursday.
VAN SUSTEREN: Congressman, thank you, sir. And of course, we watch to see what happens between now and Thursday and on Thursday. Thank you, sir.
GOWDY: Yes, ma'am. Thank you.