The lawyers tangled up in the dispute over access to U.S. Justice Department information about the gun investigation Operation Fast and Furious are set to meet in court in Washington tomorrow morning.
U.S. District Judge Amy Berman Jackson wants the lawyers to address, among other things, whether there's a realistic possibility that DOJ and the House of Representatives oversight committee, which is seeking the enforcement of a subpoena, will settle the case.
The oversight committee sued DOJ in Washington's federal trial court in August after the full House voted, largely along party lines, to hold Attorney General Eric Holder Jr. in contempt of Congress. The committee wants to review information about the Fast and Furious gun probe—federal agents allowed firearms to flow into Mexico—and how the department responded to congressional requests about the probe.
DOJ lawyers contend that Jackson doesn't have a role in the dispute, which the department characterizes as a political tiff between Congress and the executive branch. President Barack Obama in June, at the request of Holder, asserted executive privilege over certain internal DOJ documents regarding the Fast and Furious investigation. The department's legal team in October asked Berman to dismiss the suit. "Judicial restraint, not judicial intervention, is warranted," DOJ attorneys said then.
Kerry Kircher of the House general counsel's office, in court papers filed November 21, questioned the assertion of executive privilege "over internal agency documents that reflect no advice to or communication with" Obama.
Holder "would prefer that this court not address this quintessentially legal issue—not surprisingly given that no court ever has held that Executive privilege extends anywhere near as far as the Attorney General now claims that it does."
DOJ's separation of powers argument, Kircher said in the papers, "reduces essentially to the proposition that the executive may not be called to account before the judiciary with respect to its dealings with the legislative branch."
"This extreme notion, if accepted, would significantly hamstring Congress’s ability to oversee—and thus to guard against—malfeasance, abuses of authority, and mismanagement by the executive," Kircher wrote. "By advocating for this court to avoid reaching the merits here, the Attorney General really is asking this court to tilt the balance of powers between the two political branches radically in favor of the executive."
Kircher also disputed the DOJ notion that the clash is political in nature. Calling a dispute "political," Kircher declared, "is not a legal argument; it is a talking point masquerading (poorly) as an argument."
The conservative American Center for Law and Justice today filed a friend-of-the-court brief in support of the oversight committee. The brief said “there is simply no basis for believing that [DOJ’s] preferred political negotiation strategy will yield any resolution, much less a constitutionally correct one.”
Jackson, who joined the federal district bench in Washington in March 2011, has indicated she doesn't want the dispute to drag on.
In October, the judge said she'd rule on the DOJ request that the suit be dismissed, on jurisdictional grounds, before setting a schedule to address the merits of the case. Jackson rejected a proposed schedule that took the case in the spring of 2013.