The U.S. Justice Department and House Republicans will continue to try to reach an agreement, short of a decision from a federal judge, over the disclosure of additional information about the controversial gun trafficking investigation Operation Fast and Furious.
Ian Gershengorn, a top DOJ lawyer in the Civil Division, and House general counsel Kerry Kircher said the two sides will meet soon to try to craft a settlement over the documents in dispute. President Barack Obama in June asserted executive privilege over certain documents, keeping the information out of reach from House Republicans.
House lawyers are contesting the merits of the privilege, arguing that DOJ should not be allowed to hide information from Congress after it has obtained a valid subpoena. Kircher said in recent court papers that a ruling in favor of DOJ would mark an unwarranted expansion of executive privilege.
The House Oversight Committee sued DOJ in Washington federal district court in August over the department's refusal to turn over documents concerning how the government responded to the congressional inquiry into Fast and Furious. The suit, which seeks the enforcement of the subpoena, followed a House vote, largely on party lines, to hold Attorney General Eric Holder Jr. in contempt of Congress.
Fast and Furious is the now-defunct gun program in which federal agents allowed firearms, acquired by straw purchasers, to flow into Mexico. Investigators, by following the guns, wanted to build cases against higher-up conspirators who traffic in firearms. Weapons have been linked to at least one murder, the killing of a U.S. border agent named Brian Terry.
Holder, grilled time and again on Capitol Hill this year, has repeatedly called the sting "flawed." A DOJ internal investigation, published in September, criticized senior DOJ officials for their roles in Fast and Furious but did not pin blame on Holder. House Republicans believe DOJ officials may have misled Congress about the extent to which senior leaders at the department knew about the flawed tactics of the gun sting.
U.S. District Judge Amy Berman Jackson, a white-collar defense lawyer in Washington before she joined the bench last year, set a hearing for January 10 to address the department's effort to dismiss the suit.
Jackson will first rule on whether she has jurisdiction to hear the case before delving the substance of the tiff between DOJ and the House. DOJ has urged Jackson to refrain from entering the fray, calling the dispute a political match that doesn't require judicial intervention.
"Despite the length of the pleadings, there's not a lot of controlling legal precedent here," Jackson said at one point during the hearing, which lasted about 20 minutes.
Kircher told Jackson that he "gallantly accepted" the department's offer to sit down to discuss a settlement. He declined to express any expectation about the meeting. Gershengorn said in court that negotiation talks are the "appropriate course" at this point.
Gershengorn said today that January 3—a week before the hearing—is a potentially important date. The oversight committee's subpoena, he said, expires then. The entry of a new Congress could raise issues of mootness, he said.
Jackson told the lawyers to give her a report before the January 10 hearing about the status of the subpoena.