A federal district court judge in Washington, D.C., has rejected the Department of Justice’s (DOJ) request to dismiss the lawsuit filed by the House of Representatives against Attorney General Eric Holder to enforce its subpoena for documents related to the its investigation into Operation Fast and Furious.
Holder was held in contempt by the House—the first time that has happened to an Attorney General—for refusing to turn over the subpoenaed documents. After the U.S. Attorney for the District of Columbia declined to enforce the contempt citation and President Obama invoked executive privilege to protect the DOJ documents from disclosure, the House of Representatives filed its own lawsuit against Holder. The House claimed that the assertion of executive privilege was invalid since there was no claim that the documents withheld by the DOJ contained any advice provided to the President or that they touched upon any core constitutional functions of the President.
In its motion to dismiss, the DOJ made the startling argument that the courts have no role in resolving a dispute between Congress and the President over the legitimacy of his invocation of executive privilege. This would permit the President to stonewall any congressional inquiry—as Richard Nixon tried to do by ignoring subpoenas—or invoke executive privilege in an improper fashion to prevent the disclosure of embarrassing information or criminal conduct.
However, Judge Amy Berman Jackson, an Obama nominee, was having none of it. In her view, “endorsing the proposition that the executive may assert an unreviewable right to withhold materials from the legislature would offend the Constitution.” She chided the DOJ for asserting that an assumption of jurisdiction by Judge Jackson to decide this question “would mark an unprecedented expansion of the role of an Article III court.” She pointed out that there “has been binding precedent to the contrary in this Circuit for more than thirty-five years.”
Not only that, but just five years ago there was “a similar clash” between President Bush and Congress in Committee on the Judiciary v. Miers in which “another court in this District carefully considered and rejected the same arguments being advanced by the Attorney General here.”
Judge Jackson was remarkably frank in pointing out the dishonesty of the DOJ’s arguments:
In the end, the civics lesson set out in the Department’s brief is flawed and selective, and it ignores the fact that almost 40 years ago the Supreme Court unequivocally rejected the notion that the separation of powers doctrine would bar judicial review of a Presidential claim of privilege.
Jackson was, of course, talking about the Supreme Court’s decision in United States v. Nixon.
The court also stated that “dismissing the case without hearing it would in effect place the court’s finger on the scale, designating the executive as the victor [over Congress] based solely on his untested assertion that the privilege applies.”
Judge Jackson was careful to say that her decision that she has jurisdiction to decide the legitimacy of President Obama’s claim of executive privilege “should not be taken as any indication of [her] views on the merits of the dispute.” But her decision means the contempt case is going forward despite the best efforts of the Attorney General to stop it.