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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.
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.
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“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department’s response through a February 4, 2011 letter to Congress that contained inaccurate information and was later withdrawn.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.
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