Updated 2:42 p.m.
Attorney General Eric Holder Jr. wants a federal judge in Washington to stay out of the political fight over the flawed Operation Fast and Furious gun-trafficking sting.
Lawyers for the Department of Justice have asked U.S. District Judge Amy Berman Jackson to dismiss a lawsuit filed by a congressional committee related to the operation, arguing that her potential intervention in this dispute between the executive and legislative branches represents “the gravest constitutional threat” from the case.
"Judicial restraint, not judicial intervention, is warranted," the motion filed late Monday states (PDF).
The House Committee on Oversight and Government Reform filed the civil complaint in U.S. District Court for the District of Columbia in August. The Republican-led committee is seeking to enforce a subpoena for documents related to its investigation into operation’s details, especially about how and when Holder and other department officials learned about the tactics involved.
A gun from Fast and Furious, an operation in which federal agents allowed straw buyers to purchase firearms in the United States and transport them to Mexico, has been connected to the death of Border Patrol Agent Brian Terry.
The White House asserted executive privilege over the documents in question, but the House voted mainly on party lines to find Holder in contempt of Congress in June. That allowed the House committee to file the complaint.
DOJ lawyers call the Fast and Furious debacle "a quintessentially political dispute between the Branches over the scope of their respective constitutional powers." The motion to dismiss argues that the long-established give-and-take process between Congress and the Executive Branch "would unravel if courts were available to dictate what information may be demanded or withheld."
"This Court should reject the rash call for judicial intervention here, lest the constitutionally-sanctioned and time-honored process of negotiation and accommodation itself becomes a thing of the past," the motion states. "The Department has acknowledged flaws in the operation, taken comprehensive steps to fix those problems, and requested an independent Inspector General report that provides a comprehensive account of Operation Fast and Furious and its aftermath."
DOJ lawyers acknowledged that a district court assumed jurisdiction over another congressional lawsuit, Committee on Judiciary, U.S. House of Representatives v. Miers, but warned that that decision was leading the country down the wrong path.
Congress, the department argued, has measures to punish the executive branch through appropriations and other means. "An assumption of jurisdiction here would short-circuit the constitutional design and threaten to alter permanently the relationship among the Branches," the motion states. "Filing suit is far easier than mustering the votes necessary to cut appropriations, defeat legislation, or override a veto, and is far less visible to constituents."
The 41-page complaint (PDF) by the House oversight committee chastised Holder for his "contumacious refusal" to comply with a subpoena and set the stage for such a court battle over the scope of executive privilege.
Republicans are also seeking information about how the department's knowledge of the operation "evolved" after February 4, 2011, when the department gave information to Congress that it later rescinded.
DOJ says Congress and the Executive Branch have traditionally relied on a give-and-take process to meet the needs of the other branch. "The accommodation process, as contentious and imperfect as it may be, has thus governed this dispute as it has countless others. The Department provided Congress thousands of pages of material, as well as hours of testimony and interviews with senior officials, with additional productions and briefings offered."
Rep. Darrell Issa (R-Calif.), the chair of the oversight committee who has led the push for documents, said that the response from the DOJ should trouble Americans who don't believe the White House and federal government are above the law.
"In perpetuating a cover-up, through false and misleading statements that even the Justice Department’s own Inspector General found troubling, the Obama administration argued for months that it did not have to meet its legal obligations to a lawfully issued congressional subpoena," Issa said in a written statement.
"Now, the Department is advancing arguments – already rejected by the federal judiciary – that our court system does not have jurisdiction to ensure accountability either," Issa said.