Back in 2012, the Republican controlled House of Representatives filed a civil suit after the Department of Justice under then-Attorney General Eric Holder refused to hand over documents related to Operation Fast and Furious. President Barack Obama invoked executive privilege over the documents.

Operation Fast and Furious allowed 2000 weapons, monitored by the ATF, to land in the hands of Mexican drug cartels. A cartel member used one of these guns to kill Border Patrol Brian Terry in December 2010. Another gun-running scheme led to the death of ICE Agent Jaime Zapata.

Now as the Democrat controlled House fights for the unredacted report from Special Counsel Robert Mueller, in which President Donald Trump invoked executive privilege, we received word the two sides settled their 2012 lawsuit.

The Lawsuit

Operation Fast and Furious, which I covered extensively at Breitbart News, has caused the deaths of many people, including Terry. His death brought the dangerous operation to light. The ATF should have monitored the sale of the 2,000 weapons, but failed to do its job. They still haven’t recovered hundreds of weapons.

The Republican House wanted documents related to the operation, but Holder’s DOJ denied them the essential documents. The ones released never told us Holder or Obama knew about the operation.

Obama eventually invoked executive privilege over these documents. The House filed the lawsuit, which asked the court to revoke the privilege. The  House then voted Holder in contempt of Congress.

Holder’s DOJ wanted the lawsuit dismissed because “the Constitution does not permit the courts to resolve the political dispute between the executive branch and the House Oversight and Government Reform Committee that is seeking the records.” The DOJ said the two sides have a history of resolving these problems without help from the courts. The department also worried this lawsuit would cause more in the future.

In 2014 and 2016, US District Court Judge Amy Berman Jackson ruled against Obama’s DOJ. She first ruled in 2014 that the DOJ had until November 3 to release the documents.

Jackson made this ruling again in 2016 when she asserted that “President Obama cannot use executive privilege to keep records on the ‘Fast and Furious’ gun-tracking program from Congress.”

October 2018

It looked like President Donald Trump’s administration and the House Republican leaders reached a compromise in 2018, but Jackson ended it since it “included the House agreeing to wipe Jackson’s rulings from the books.” From Politico:

In a 24-page opinion, Jackson suggested she was being asked to take an extraordinary step to bless what appeared to be a deal motivated by a shift in political power.

“The only real change in circumstance since the filing of the appeal has been the change in political leadership at the Department of Justice in the wake of the Presidential election. This suggests that the primary, if not the sole, objective of the conditional settlement and the pending motion is to erase the Court’s prior rulings,” she wrote.

Jackson said her rulings in the case were significant, even though they are not binding on any other judge in the future. She was one of two judges to conclude in recent years that the courts have the power to decide a dispute between the Congress and the executive branch about access to records or testimony, even in the face of an assertion of executive privilege.

“The fact that this unique dispute involving the production of a specific set of records — which the Court found had already been disclosed to the public in any event — has been resolved does not diminish the importance of the fundamental legal questions that arose along the way. And the parties have not articulated any reason why the Court’s opinions on those broad subjects — which were shaped by its consideration of the thorough briefing and skilled argument by both sides — should simply evaporate,” Jackson wrote.


Apparently the two sides reached an agreement in April 2019, but did not make a public filing until now. No one knows why it took almost a month to do this. From CNN:

The Justice Department says it still disagrees with some of the federal court’s opinions in this case. The court had ordered the department to produce some documents.

The House stated in the settlement that it, too, still disagrees with the prior court’s orders, “including its conclusion that the deliberative process privileged may be asserted against Congress,” the signed settlement agreement said.

Both sides even carved out in their newly proposed settlement the ability to continue to fight over privilege issues.

“The Parties agree that because subsequent developments have obviated the need to resolve those issues in an appeal in this case, the District Court’s holdings should not in any way control the resolution of the same or similar issues should they arise in other litigation between the Committee and the Executive Branch, and hereby waive any right to argue that the judgment of the District Court or any of the District Court’s orders or opinions in this case have any preclusive effect in any other litigation,” the settlement read.

The settlement has not yet been approved by the federal court of appeals.

How This Affects the Mueller Report

Yesterday, Trump invoked executive privilege over the unredacted Mueller report. I pointed out in my blog that redactions happen for a reason. But House Judiciary Committee Chairman Jerry Nadler won’t drop it so the committee voted along party lines to hold Attorney General William Barr in contempt.

The Fast and Furious fight shows how long the fight over documents between the House and DOJ can last years, which means, like the Fast and Furious case, could go on longer than Trump’s administration if people vote him out of office in 2020.

But it also shows the hypocrisy, especially with Nadler. He has a major problem with Barr over Mueller’s unredacted report even though the redactions happened because of legitimate legal reasons.

How did he feel about Holder and the DOJ back in 2012?

Let’s see here. Operation Fast and Furious, which led to the deaths of civilians and Terry along with the death of Zapata in another scheme, did not seem to bother Nadler.

Yet an unredacted report gives Nadler a reason to scream constitutional crisis even though the redacted report showed nothing happened between Trump and Russia.

Even Sen. Marco Rubio (R-FL) points out the hypocrisy.


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