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Fresh DOJ loss in ‘Fast and Furious’ docs fight

Posted on
 9/30/13

A federal judge has rejected Attorney General Eric Holder’s attempt to keep  the courts from wading into the “Fast and Furious” documents dispute that led to  him being held in contempt by the House last year.

Eric Holder is pictured. | AP Photo

The legal fight arose after the Justice Department refused to comply with  House subpoenas

 

 

In a ruling Monday night, U.S. District Court Judge Amy Berman Jackson turned  down the Justice Department’s request to dismiss a lawsuit brought by the House  Oversight and Government Reform Committee after President Barack Obama asserted  executive privilege to prevent some records about the administration’s response  to the “Operation Fast and Furious” gunrunning scandal from being turned over to  Congress.

“This case presents the sort of question that the courts are  traditionally called upon to resolve,” Jackson said in her 44-page decision, issued more than five months after lawyers argued  the issue in her packed courtroom and more than a year after the House committee  filed suit. “Dismissing the case without hearing it would in effect place the  court’s finger on the scale, designating the executive as the victor based  solely on his untested assertion that the privilege applies,” she wrote.

A Justice Department spokesman said officials there were reviewing the  decision.

The legal fight arose after the Justice Department refused to comply with  House subpoenas seeking information about the response to “Operation Fast and  Furious,” a Bureau of Alcohol, Tobacco, Firearms & Explosives undercover  operation targeting gun trafficking along and across the Mexican border.

DOJ’s Inspector General and Congressional investigators found that the  operation may have resulted in as many as 2000 weapons flowing to  narcotraffickers with little or no effort to track them. The weapons have shown  up at crime scenes on both sides or the border as well as at the fatal shooting  of a U.S. Border Patrol agent in 2010.

DOJ officials say they turned over virtually all records about the operation  and about the department’s response through a February 4, 2011 letter to  Congress that contained inaccurate information and was later withdrawn. However,  officials refused to turn over internal communications after that time dealing  with responses to congressional and press inquiries.

Obama backed up the department by asserting executive privilege over those  documents days before the House voted to hold Holder in contempt for not turning  over the records.

Justice Department lawyers had argued that if Jackson got involved in the  dispute, all document fights between Congress and the executive branch could  wind up in the courts rather than being resolved through negotiation. But the  judge rejected that argument.

“The Court rejects the notion that merely hearing this dispute between the  branches would undermine the foundation of our government, or that it would lead  to the abandonment of all negotiation and accommodation in the future, leaving  the courts deluged with subpoena enforcement actions,” Jackson wrote.

The decision from Jackson, an Obama appointee, largely tracked with a ruling  U.S. District Court Judge John Bates — a President George W. Bush appointee —  rendered in 2008 in a similar fight over records pertaining to Bush’s dismissal  of a batch of U.S. attorneys in 2006.

In the face of largely identical arguments from the Justice Department, Bates  concluded he had authority to resolve a disagreement between the House Judiciary  Committee and the Bush White House. The Bush administration appealed, but no  decision was ever issued by the appeals court because the dispute was settled  after Bush left office in 2009.

Jackson called the Justice Department’s arguments in the current case “flawed  and selective.” And she said the parade of horrible outcomes executive branch  lawyers predicted during the Bush-era fight — involving frequent recourse to the  courts by Congress — simply hasn’t materialized.

“One cannot help but observe that in the five years that have elapsed since  [Bates’s] decision, the dire consequences prophesied by the Department have not  come to pass,” the judge wrote.

Jackson hasn’t ruled yet on whether Obama had authority to assert executive  privilege over records never provided to the president or his advisers, but she  concluded in her ruling Monday that the issue is an appropriate one for the  courts to resolve.

“The Court cautions that this opinion should not be taken as any indication  of its views on the merits of the dispute, which have yet to be briefed, argued,  or considered in any way,” she wrote.

 

 

 

http://www.politico.com/story/2013/09/fast-and-furious-doj-documents-97604.html

 

About Doc

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