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More on Fast and Furious

As mentioned last month, a federal district court has denied Attorney General Holder’s motion to dismiss a lawsuit, brought by the House Committee on Oversight and Government Reform, in which the committee seeks to enforce a subpoena for Justice Department documents related to the “Fast and Furious” investigation. The motion to dismiss advanced a number of grounds for declining jurisdiction, but they all more or less came down to a claim that the court should not intervene in a political dispute between the executive and legislative branches.

Judge Amy Berman Jackson decisively rejected these arguments in her opinion (summarized in more detail below). The court not only found the Justice Department’s arguments to be contrary to longstanding precedent, but inconsistent with the executive branch’s own prior practice. As the court pointed out, the executive branch has “itself invoked the jurisdiction of the courts when it sought to enjoin compliance with a Congressional subpoena” (during the AT&T case in the 1970s) and when it sought “a declaration concerning the validity of a claim of executive privilege asserted in response to a House request” (during the Gorsuch case in the 1980s). Quoting Judge Bates in the Miers litigation, Judge Jackson commented that “[t]he Court does not understand why separation of powers principles are more offended when the Article I branch sues the Article II branch than when the Article II branch sues the Article I branch.”

Reading Jackson’s original decision, it is evident that she did not think this is a particularly close case or difficult legal question. That impression is confirmed by her order yesterday with respect to the Attorney General’s request to certify the decision for interlocutory appeal. Granting such a request requires finding a “substantial ground for difference of opinion” with respect to the question of law, and the court found that the Attorney General had failed to provide any authority or other ground for such a difference of opinion. Accordingly, it declined to certify the question for appeal.

For those who are interested, a summary of the earlier opinion follows.

The court first addresses the Justice Department’s position that some combination of the political question doctrine and separation of powers principles prohibits the court from adjudicating a dispute between the political branches. Judge Jackson notes that the “[political question] label does not apply simply because the political branches of government are involved or because political calculations may underlie their actions.” Rather, what is important is the nature of the underlying dispute. The question involved in this case, whether the President may invoke executive privilege, has long been recognized as one that the courts may decide. See United States v. Nixon, 418 U.S. 683 (1974). Judge Jackson finds nothing in Nixon or other precedent that an otherwise justiciable dispute is rendered non-justiciable simply because it arises between the political branches.

To the contrary, the court agrees with Judge Bates, who ruled in House Committee on the Judiciary v. Miers, 558 F.Supp.2d 53 (D.D.C. 2008), that DOJ’s argument was foreclosed by both Nixon and long-standing D.C. Circuit precedent involving information access disputes between the political branches. As Judge Jackson notes, DOJ does not even try to argue that the current case is different than Miers; it simply wants a different result. She points out, however, that “the dire consequences prophesied by the Department [after Miers] have not come to pass” and rather caustically dismisses “the civics lesson” in DOJ’s brief as “flawed and selective.” The bottom line is that disputes of this nature have long been recognized as justiciable but this has not led to the courts being deluged with actions to enforce congressional subpoenas.

Turning to the Attorney General’s other arguments, the court finds it has subject matter jurisdiction because the case raises a federal question under 28 U.S.C. §1331. In Miers, DOJ had not disputed this point, but it now argues that the existence of a specific statute that provides jurisdiction over enforcement of Senate subpoenas (28 U.S.C. § 1365) implicitly bars the House from proceeding under general federal question jurisdiction to enforce a subpoena.  Judge Jackson, however, “does not accept DOJ’s argument that the lack of specific jurisdictional provision somehow negates that applicability or availability of the general provision.” Her conclusion is bolstered by the fact that the legislative history of section 1365 specifically disavowed any such negative implication.

Judge Jackson also rejected the Attorney General’s argument that the House lacked standing under Raines v. Byrd, 521 U.S. 811 (1997). Raines held that individual members of Congress did not suffer the type of concrete, personal harm from the Line Item Veto Act that would give them constitutional standing to sue. But the Court specifically declined to reach the question of whether Congress or either house thereof would have standing to vindicate the institutional harm suffered by the legislative body, and it placed some emphasis on the fact that the Raines plaintiffs were not authorized to sue by either chamber. Judge Jackson concluded that Raines was “entirely distinguishable” from the case before her, where “the Committee has requested a particular set of documents in the course of an official investigation, it has issued a subpoena for that material, the Attorney General has withheld a clearly delineated subset of that material, and the House of Representatives has specifically authorized the initiation of this action to enforce the subpoena.”

Finally, the court rejects the Attorney General’s argument that it should exercise its discretion to decline to hear the case. Noting that the Attorney General’s request was largely based on the separation of powers/political question arguments she had already rejected, Judge Jackson also did not buy the suggestion that the case should be dismissed so that the parties could engage in further attempts to resolve the matter through negotiation. As the court archly notes, “[w]hile the defense presents its motion as a request that the court remain neutral while the other two bodies work out their difficulties, 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.” Without assigning blame, Judge Jackson concludes that the parties have been given every opportunity to reach a settlement and appear to be at an impasse.

 

 

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