DOJ tells off court system in request to dismiss Fast and Furious documents lawsuit

Matthew Boyle Investigative Reporter
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Attorney General Eric Holder’s Department of Justice on Monday night asked a federal court to dismiss a lawsuit the House of Representatives recently filed seeking to force President Barack Obama’s administration to release Operation Fast and Furious documents it’s still withholding from the public and from Congress.

The lawsuit — officially filed on Aug. 13 — is a result of the bipartisan June 28 House vote to hold Holder in civil contempt of Congress for his failure to comply with a congressional subpoena related to those Fast and Furious documents and other information. The House also voted Holder into criminal contempt of Congress on a bipartisan basis that day, but the Justice Department directed Ronald Machen, the U.S. Attorney for the District of Columbia, to not enforce the criminal contempt resolution.

As the House oversight committee was beginning the official contempt proceedings, President Obama swooped in and asserted executive privilege over many Fast and Furious documents.

The lawsuit’s main goal is to compel the Obama administration to give up all Fast and Furious documents, and it seeks to use the court system — the third branch of government — to do so. Among the potential outcomes, the court could find Obama’s assertion of executive privilege legally “baseless,” as the House GOP leaders allege in the lawsuit, and eventually force the president and attorney general to release the documents.

In a brief filed Monday night asking the court to dismiss the case, the DOJ argued that it believes the court system has no role in this type of matter — and should stay out of conflicts between the legislative and executive branches of government when it comes to congressional oversight disputes.

The DOJ argued that if this lawsuit is allowed to move forward, then “countless other suits by Congress are sure to follow, given the volume of document requests issued by the dozens of congressional committees that perform oversight functions.”

“The Founders intended Congress to use the tools provided in the Constitution — rather than the federal courts — to obtain documents that Congress believes necessary to engage in oversight of the Executive Branch,” the DOJ argued. “The Branches’ respective political tools, rather than litigation, provide the means for the two Branches to resolve their oversight differences.”

To support its case, the Justice Department cited a federal judge from a 1973 Watergate-related court case who said that “congressional control over appropriations and legislation is an excellent guarantee that the executive will not lightly reject a congressional request for information.”

“The combination of robust alternative remedies and the historical absence of involvement by the Judiciary have provided incentives for both Branches to work in earnest through the process of negotiation, accommodation, and ultimate resolution,” the DOJ added. “That process would unravel if courts were available to dictate what information may be demanded or withheld. Judicial intervention would move the Branches toward litigation, not accommodation, and would dramatically alter the separation of powers.”

Holder’s Justice Department then told the court outright to back off: “Judicial restraint, not judicial intervention, is warranted. The Committee’s suit must therefore be dismissed.”

In a statement, House oversight committee chairman Rep. Darrell Issa said that the Obama administration’s legal argument in its request to have the case dismissed “should trouble Americans who believe the President and the Federal government are not above the law.”

“In perpetuating a cover-up, through false and misleading statements that even the Justice Department’s own Inspector General found troubling, the Obama administration argued for months that it did not have to meet its legal obligations to a lawfully issued congressional subpoena,” Issa said. “Now, the Department is advancing arguments — already rejected by the federal judiciary — that our court system does not have jurisdiction to ensure accountability either. The American people deserve to know the full truth about what happened in Operation Fast and Furious and why top justice officials stood behind false denials of reckless conduct.”

It’s unclear if the court will dismiss the suit or allow it to continue, but congressional investigators are overtly confident they will easily win in court. Issa and Senate Judiciary Committee ranking member Sen. Chuck Grassley, among many others, have said they believe a judge will overturn Obama’s executive privilege assertion as soon as a judge gets a shot — they just have to go through the legal loophole obstacle course to get there.

There are two types of executive privilege a president can legally assert: the strong “presidential communications privilege,” and the weaker “deliberative process privilege.”

The presidential communications privilege can protect a president’s direct communications with his advisers and in some cases protect similar materials for senior White House advisers. The deliberative process privilege can apply to discussions among and communications between any executive branch officials — even those outside the president’s inner circle — and does not require the president to have been involved in the communications.

With regard to Fast and Furious documents, Obama has said he is asserting deliberative process privilege not presidential communications privilege. If he had asserted the stronger one it would mean, as a spokesman for House Speaker John Boehner said, “that White House officials were either involved in the ‘Fast and Furious’ operation or the cover-up that followed.”

Since Obama’s executive privilege assertion is via the weaker deliberative process route, though, congressional Republicans like Issa and Grassley believe the president has stepped outside his bounds in making the move.

That’s because, as Issa has pointed out in a letter to Obama on June 25, the president can’t legally assert privilege over “deliberative documents between and among department personnel who lack the requisite ‘operational proximity’ to the president” because, according to the Congressional Research Service, courts have determined that privilege over deliberative documents “disappears altogether when there is any reason to believe government misconduct has occurred.”

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