One of Attorney General Eric Holder Jr.'s biggest legal and political headaches isn't going away.
U.S. District Judge Amy Berman Jackson on Monday night declined to dismiss a lawsuit filed against Holder by the House Committee on Oversight and Government Reform. The suit seeks enforcement of a subpoena over documents related to the Operation Fast and Furious gun running controversy.
Jackson's 44-page ruling navigates a battle over separation of powers between the executive and legislative branches. In the opinion, the judge explains not only why the judicial branch should have a say in the dispute, but also the bounds of its involvement.
Holder has refused to produce records that the committee subpoenaed on grounds that the information is covered by the executive privilege. The House found Holder in contempt of Congress in June 2012. The committee then turned to the courts, setting up a battle of the branches.
Jackson's ruling avoids arguments about the merits while rejecting the Justice Department's argument that the federal judiciary cannot and should not get involved in the dispute. "This opinion does not grapple with the scope of the President’s privilege: it simply rejects the notion that it is an unreviewable privilege when asserted in response to a legislative demand," Jackson wrote.
She added that "neither the Constitution nor prudential considerations require judges to stand on the sidelines," and said the Constitution "contemplates not only a separation, but a balance, of powers."
"In the Court's view, endorsing the proposition that the executive may assert an unreviewable right to withhold materials from the legislature would offend the Constitution more than undertaking to resolve the specific dispute that has been presented here," Jackson wrote.
Jackson's ruling also rejects a Justice Department argument that the court should dismiss the case to remain neutral while the other two branches find their own resolution. Dismissing the case without hearing it "would in effect place the court’s finger on the scale, designating the executive as the victor based solely on his untested assertion that the privilege applies," Jackson wrote.
Jackson also noted that the judiciary's role in the dispute had limitations at this point, and declined to try to assign blame for the impasse on the subpoena.
"Getting into the question of who bears responsibility for the impasse here—who negotiated properly or fairly, whether the appropriate amount of time was spent, whether any accommodation offered was 'substantial' or merely superficial, and the relative merits of the grounds for the withholding and the stated need for the material—would put the Court squarely in the position of second guessing political decisions and take it well outside of its comfortable role of resolving legal questions that are amenable to judicial determination," Jackson wrote.
Senator Chuck Grassley (R-Iowa), whose investigative staff started the investigation into Operation Fast and Furious, said the documents are essential to gaining a full understanding of the gunwalking program, which has been attributed to the shooting death of a U.S. Border Patrol agent.
"This is an important step toward ensuring that Congress' constitutional responsibility to provide oversight of the executive branch is vindicated," Grassley said in a statement. "The President's sweeping assertion of executive privilege over Fast and Furious documents is completely contrary to the transparent government that he promised and beyond any valid claim of privilege under the law."
Representative Darrell Issa (R-Calif.), the oversight committee chairman who led the charge for holding Holder in contempt, said in a statement that the ruling was "an important step toward the transparency and accountability the Obama Administration has refused to provide."
Jackson's ruling doesn't necessarily give the House the documents lawmakers want. The judge has asked the lawyers to provide her a schedule that will govern future proceedings.