The Judiciary is taking a first, timid step toward interceding on Congress’s side and against executive over-reach regarding the Operation Fast and Furious.

On Tuesday, Judge Amy Berman Jackson of the United States District Court for the District of Columbia ruled that the Department of Justice must hand over to Congress documents pertaining to “Fast and Furious,” despite President Obama’s assertion of the “deliberative process” privilege.


Fast and Furious was an operation by the Bureau of Alcohol, Tobacco and Firearms (“ATF”) meant to identify Mexican gun-runners by intentionally putting firearms into the stream of illegal commerce and tracking their progress to roll-up the participants.  Instead, Fast and Furious inadvertently released thousands of firearms into criminal hands, some of which were connected to the murder of a U.S. Border Patrol agent in 2010.

The ATF is an agency within the Department of Justice (“DOJ”), and DOJ has repeatedly refused to produce documents and stalled cooperation with Congressional inquiries into Fast and Furious.  In 2011, then-Assistant Attorney-General Ronald Weich falsely stated in a letter to Congress that the so-called “gunwalking” had not occurred at all.  DOJ subsequently retracted that denial and admitted that ATF intentionally allowed firearms to leave the country and enter Mexico.

According to DOJ, as a result of that error it conducted internal investigations and produced reports that detail the contents of the documents it has withheld from Congress.

On October 12, 2011, the House Committee on Oversight and Government Reform (the “Oversight Committee”) issued a subpoena to the Department of Justice, requiring DOJ to turn over various documents relating both to Fast and Furious, and internal communications about Fast and Furious.  According to Tuesday’s decision, in October, 2011 DOJ produced “a considerable volume of material that was responsive to the subpoena, but it withheld all records created on or after February 4, 2011.”

On June 20, 2012, the day of a scheduled Oversight Committee vote on whether to report Holder to the House for a contempt vote for refusing to turn over documents, President Obama claimed executive privilege over the underlying documents.

Congress rejected that privilege claim and held Holder in contempt on June 28, 2012.

On August 18, 2012, the House Committee on Oversight and Government Reform filed suit against Holder in his capacity as Attorney General.  When Loretta Lynch became Attorney General, she was substituted in as defendant.

The case, formally captioned Committee On Oversight And Government Reform, United States House of Representatives v. Lynch, has moved along since then, with the Court issuing rulings on various motions.  Of note, the Court denied the parties’ cross-motions for summary judgment, during which she held that the deliberative process privilege did apply to communications within DOJ about how to respond to media inquiries.

During the course of litigation, DOJ has produced more than 10,000 additional documents.  In the motion decided Tuesday, the Oversight Committee sought an order compelling DOJ to 10,446 documents DOJ has refused to produce based on the deliberative process privilege, as well as an unspecified number of other document DOJ has not even identified.

Tuesday’s Order

Tuesday’s “Memorandum and Order” is a significant step that puts Lynch, DOJ and President Obama squarely on the defensive.

As Judge Jackson notes, this decision is ostensibly in response to the Oversight Committee’s motion to compel DOJ to turn over documents “generated after February 4, 2011 that have been withheld on the grounds that they are covered by the deliberative process prong of the executive privilege.”  However, that motion is more or less redundant with the lawsuit itself, which seeks the turnover of those same documents.

The Order does not say that President Obama’s “Deliberative Process” privilege claim was illegitimate or improper.  To the contrary, the Court explicitly held that the privilege claim was proper:

[the Court] rejects the Committee’s articulation of the scope of the privilege. In accordance with other authority from this Circuit, the Court finds that records reflecting the agency’s internal deliberations over how to respond to Congressional and media inquiries fall under the  protection of the deliberative process privilege. It also finds that the defendant’s detailed list describes the records being withheld with sufficient detail to support the assertion of the privilege.

In addition:

the Court holds that documents withheld by defendant that reveal the Department’s internal deliberations about how to respond to press and Congressional inquiries into Operation Fast and Furious are protected by the deliberative process privilege.

However, the Court decided that DOJ essentially waived the privilege claim.  The deliberative process privilege is qualified:

[C]ourts must balance the public interests at stake in determining whether the privilege should yield in a particular case, and must specifically consider the need of the party seeking privileged evidence.

In this case, according to the Court, the balancing need not even be conducted because DOJ has no interest in withholding documents it has already discussed publicly in great detail:

since any harm that might flow from the public revelation of the deliberations at issue here has already been self-inflicted: the emails and memoranda that are responsive to the subpoena were described in detail in a report by the Department of Justice Inspector General that has already been released to the public.

Later the Court added:

The Department has already laid bare the records of its internal deliberations – and even published portions of interviews revealing its officials’ thoughts and impressions about those records. While the defense has succeeded in making its case for the general legal principle that deliberative materials – including the sorts of materials at issue here – deserve protection even in the face of a  Congressional subpoena, it can point to no particular harm that could flow from compliance with this subpoena , for these records, that it did not already bring about itself.

What Does It Mean?

The Order means that DOJ must produce around 10,000 documents it has previously withheld.

Politically, it has a bit more importance to the extent that it rebukes DOJ’s refusal to cooperate with Congress.  Chairman of the House Oversight and Government Reform Committee Jason Chaffetz (R-UT) released a statement saying:

Today’s decision will help us advance the Fast & Furious investigation into this administration’s gun running operation. After allowing guns to walk, the administration’s attempt to hide behind executive privilege only adds insult to injury. While the decision doesn’t give us access to all the documents, it is an important step forward. We will continue investigating until we get to the truth.

In the broader scheme, Tuesday’s order is a positive sign that the Courts will not completely submit to executive lawlessness.  Judge Jackson is an Obama appointee, and the easy, safe thing to do would have been to defer to President Obama’s executive privilege claim.  If DOJ appeals, the D.C. Circuit Court may still do just that.

Judge Jackson fairly addressed the tension between Courts’ reluctance to interfere in political conflicts between the Executive and Congress.  Without any obvious relevance to the discreet issue addressed in the Order, the Court nevertheless noted that the Judiciary is empowered to and should assist Congress in reining in the Executive when the Executive flouts its Constitutional and legal obligations.  The Court reiterated its prior assessment that:

[T]he Supreme Court held [in United States v. Nixon, 418 U.S. 683 (1974)] that it was “the province and duty” of the Court “‘to say what the law is’” with respect to the claim of executive privilege that was presented in that case.  Id. at 705, quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).  “Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government.” Id. at 704. Those principles apply with equal force here. To give the Attorney General the final word would elevate and fortify the executive branch at the expense of the other institutions that are supposed to be its equal, and do more damage to the balance envisioned by the Framers than a judicial ruling on the narrow privilege question posed by the complaint.

In addition to expressing a willingness to buck the Executive, the Court added that it might be the arbiter even of political disputes, if the Executive and Congress cannot resolve those issues independently:

in this particular case, it is prudent for the Court to resolve the matter given the failure of the negotiation and accommodation process with respect to this particular issue to date.

Clearly, this Judge is willing to stand up to the Executive when appropriate.

But the Judge also makes clear that it is not often appropriate, and this is not a broad claim of Judicial power.  Tuesday’s decision repeatedly refers to the unique circumstances of this case – DOJ already revealed the substance of the documents it seeks to withhold – in a transparent attempt to limit its general applicability, and notes with approval courts’ reluctance to determine political questions.

Still, a win is a win.  With President Obama’s utter disregard for Constitutional limitations on his executive powers, any judicial assistance defining and enforcing those limitations is welcome.  DOJ will likely appeal, but for now is under an order to produce a bit over 10,000 documents about the Fast and Furious scandal.