Litigation over the release of documents related to a botched federal gun trafficking investigation is likely to move ahead after both sides today rebuffed a judge's suggestion of mediation, albeit for different reasons.
House Republicans filed a civil complaint against U.S. Attorney General Eric Holder Jr. in August, seeking to enforce a subpoena for documents related to Operation Fast and Furious. The parties are scheduled to argue on Holder's motion to dismiss on February 7.
At a status hearing this morning, U.S. District Judge Amy Berman Jackson asked whether mediation might be helpful, in light of the "dynamic" nature of the case and the oft-changing circumstances surrounding it. House general counsel Kerry Kircher said he didn't think it would help. The parties did meet and exchanged correspondence, he said, but added that, "I'm not encouraged by where the parties stand."
Justice Department lawyer Ian Gershengorn told Jackson that he was more optimistic, but that he thought the two sides could continue to try to negotiate on their own. Jackson said she would still consider ordering mediation, but wasn't inclined if no one asked. She said that the parties should consider whether they'd prefer to work out issues specific to this case, as opposed to leaving the door open to future court rulings with potentially longer-lasting effects.
House Republicans have long pressed the Justice Department for more information on what happened in the now-defunct gun sting operation. The House Oversight Committee filed the lawsuit shortly after finding Holder in contempt of Congress in June.
Under Fast and Furious, federal agents allowed firearms to move into Mexico and tracked their flow in the hopes of building trafficking cases. Weapons connected to the program were linked to at least one murder, the death of U.S. border agent Brian Terry.
Assuming the parties don't reach an agreement, Jackson will first decide whether she has jurisdiction to hear the case before getting to the merits of House Republicans' complaint.
Jackson dealt with several procedural issues during today's hearing. She noted that, in light of the start of a new session of Congress, the plaintiffs had already issued a new subpoena on January 3. "Anybody that says Congress can't get things done is wrong," she joked. The original subpoena expired with the start of the new session, so the new one seemed to avert a dispute over whether the case was moot.
The new subpoena means that the plaintiffs will have to file an amended complaint, but Jackson said neither side would have to resubmit briefs on the motion to dismiss before the February arguments.
Jackson did touch on one substantive issue, at least in part. Holder had cited "executive privilege" in not producing documents, but House Republicans argued in the complaint that if Holder tried to later assert that he withheld them under a separate "presidential communications privilege," that privilege couldn't apply. Jackson said that she could only address live cases and controversies, as opposed to what might happen in the future.