The Fast and Furious Decision: Can Congress Make Lemonade Out of Lemons?

The Court’s Decision

Judge Amy Berman Jackson recently issued her decision in the subpoena enforcement action brought by the House Committee on Oversight and Government Reform (COGR) against the Attorney General. The case arose out of an October 11, 2011 subpoena from COGR to then-Attorney General Holder seeking documents in the “Fast and Furious” investigation. Holder refused to produce certain responsive documents on the ground that they were protected by the deliberative process privilege.

On June 19, 2012, the day before COGR was to vote on a resolution holding him in contempt, Holder asked President Obama to assert executive privilege with regard to the disputed documents. The next day Deputy Attorney General Cole informed COGR that Obama had done so. COGR and the House then proceeded to find Holder in contempt, and COGR was authorized to bring a civil enforcement action in federal court.

In her prior rulings in the case, Judge Jackson had handed victories to both sides. In her first ruling, she rejected the Attorney General’s argument that the court either lacked jurisdiction or should decline to exercise jurisdiction over what was essentially a political dispute between the legislative and executive branches. She found the House’s complaint to be justiciable, emphasizing that it “raises a narrow legal question: can the executive properly assert executive privilege to shield an agency’s deliberative processes when the records in dispute do not reveal advice provided to the President himself or address his core constitutional functions?”

As I pointed out at the time, however, the House’s lawsuit was limited to a “narrow legal question” only if the court ultimately agreed with its position that the executive was categorically prohibited from asserting executive privilege as to the types of documents at issue. By contrast, if the court were to conclude that executive privilege may properly be invoked as to those documents “it would [become] necessary for the court to engage in the kind of weighing of interests that raise some of the hallmarks of a political question.” In that case, I predicted, the judge might “be interested in looking for another way to decide the case that avoids getting into the weeds of the committee’s investigation.”

In her second ruling, Judge Jackson did in fact decide against COGR on the broad question of whether executive privilege could be asserted as to deliberative documents not involving presidential communications. She “determined that there is an important constitutional dimension to the deliberative process aspect of the executive privilege, and that the privilege [therefore may] be properly invoked in response to a legislative demand.” The court avoided the immediate necessity of balancing the legislative and executive interests by finding that the Justice Department’s “blanket assertion” of privilege was insufficient. The Justice Department was directed to review all of the withheld documents and either produce them to COGR or provide a detailed privilege log substantiating the assertion of deliberative process.

All of which led to Judge Jackson’s final ruling, which was issued on January 19, 2016. Once again the court split the baby. It rejected COGR’s attack on the sufficiency of the privilege log, finding that the Justice Department had provided enough detail to allow the court to rule on the privilege “with respect to the bulk of the material being withheld as deliberative.” 1-19-16 slip op. at 12. It also found, contrary to COGR’s position, “that documents withheld by defendant that reveal the Department’s internal deliberations about how to respond to press and Congressional inquiries into Operation Fast and Furious are protected by the deliberative process privilege.” Id. at 17.

At this point the ordinary course would be for the court to turn to weighing the responsive interests of the legislative and executive branches. As the court explained, this would mean:

balanc[ing] the competing interests on a flexible, case by case, ad hoc basis, considering such factors as the relevance of the evidence, the availability of other evidence, the seriousness of the litigation or investigation, the harm that could flow from disclosure, the possibility of future timidity by government employees, and whether there is reason to believe that the documents would shed light on government misconduct, all through the lens of what would advance the public’s—as well as the parties’—interests.

1-19-16 slip op. at 17-18.

The court, however, was candid in acknowledging a reluctance to get into these politically sensitive factors. It expressed concern that engaging in the required “ad hoc” balancing in these circumstances would raise the separation of powers problems “that prompted the Attorney General to argue that the case should be dismissed on prudential grounds.” Id. at 18. The judge seemed to be having second thoughts about the wisdom of hearing the case in the first place. She even quoted from an earlier amicus brief (submitted by House Democrats) that urged “courts to resist being enlisted as one branch’s pawn in political fights.” Id.

As “luck” would have it, Judge Jackson was able to find a way to avoid performing this unwelcome task. She decided “in the unique circumstances presented here, the Court can decide this issue based on undisputed facts, without intruding upon legislative or executive prerogatives and without engaging in what could otherwise become a troubling assessment of the relative merit and weight of the interests being asserted by either party.” 1-19-16 slip op. at 19. These “undisputed facts” (which I am guessing the Justice Department would have disputed) were: (1) the seriousness and legitimacy of COGR’s investigation; (2) the potential relevance of the disputed documents to the investigation, as illustrated by the fact that the Justice Department had asked its Inspector General to review the disputed documents for the same purpose that COGR wished to do so; and (3) the fact that the IG’s report had already disclosed the essence of the documents so that there would be little incremental harm in disclosing them to COGR. Id. at 19-22. Accordingly, the court ordered the Justice Department to produce the disputed documents to COGR.

Judge Jackson also made clear that she had no interest in resolving the subsidiary disputes that had arisen between COGR and the Justice Department. With a barely concealed “Mommy doesn’t care who started it” tone, she noted that “the Court did not—and it should not—accept an assignment to supervise the entire contentious relationship between these parties.” Id. at 27. She ordered the parties to work out these problems without further judicial involvement.


What it Means for Congress

At first blush, the court’s decision would seem to be a net institutional loss, perhaps a significant one, for Congress. While the judge ultimately ordered the Justice Department to produce the disputed documents (more than 4 years after the issuance of a subpoena), it did so only because of “unique circumstances” that will not help in future cases. More importantly, her reasoning suggests that a broad category of executive branch documents (all those that are “pre-decisional” and “deliberative”) can potentially be withheld from Congress on grounds of constitutional privilege. Committees can expect that this reasoning will be cited in the future by agencies seeking to resist congressional oversight.

On reflection, however, I think the court’s decision may be more helpful that it first appears. At least it can be if Congress uses it correctly (hence the title of this post).

The first thing to recognize is that the court’s opinion does not suggest that departments or agencies can assert executive privilege against Congress. As the former attorney general implicitly recognized in his June 19, 2012 letter to President Obama, and as executive policy has formally stated since at least the 1982 Reagan memorandum, only the president can assert executive privilege against Congress. Under current practice, however, the president has no deadline for making this decision, and thus the executive branch can wait until Congress has actually initiated contempt proceedings before deciding to ask the president to invoke the privilege.

The second point is that Judge Jackson’s opinion recognizes that a congressional subpoena creates a judicially enforceable obligation on the part of the executive branch recipient. Courts may be reluctant or entirely unwilling to referee disputes over presidential assertions of privilege, but unless such an assertion has been made, an executive branch officer has no legal excuse for failing to comply with a congressional subpoena. If Congress (more specifically, each house) were to establish a reasonable process for making, considering and disposing of objections at the agency level, courts should be willing to enforce a subpoena unless the president has asserted executive privilege. Courts are unlikely to be sympathetic to the notion that the subpoena recipient gets to establish the process and timetable for responding to a subpoena.

Thus, I would recommend that each house consider setting up a process for requests to executive branch officers that would be outside of (and supplementary to) the normal contempt process. This new process would begin with a formal information demand to an executive branch official (for reasons I won’t get into here, I think the process will work better if the subpoena recipient is an individual, rather than an organization). There would be a time period for making objections, and then an additional period for resolving any objections through negotiation and accommodation at the staff level. If necessary, the next step would be for the committee to issue a subpoena, and the executive official would then have the opportunity to have objections heard and resolved by the committee itself. If the committee overrules the objections, it would issue an order to produce the documents within a specified time.

At this point the only legal excuse that the executive official would have for failing to comply with the committee’s order would be if the president invoked executive privilege. The president should be required to do this personally and in writing (just as House and Senate rules require when the president objects to the release of classified information). Thus, once an information dispute escalates to the point of a committee order, the president would have to decide, on the congressional timetable, whether to become personally accountable for the withholding of information. Presidents tend to be reluctant to do this, and agencies will be reluctant to ask him (or her) to do so.

If there is neither timely compliance nor invocation of executive privilege, the committee would be authorized to proceed immediately to federal court to enforce the subpoena. Because the case would not involve any constitutional privilege, there would be only a few defenses potentially available (e.g., if the subpoena were not properly authorized or served) and none should involve the type of “troubling assessment” of legislative/executive interests that concerned Judge Jackson.

A couple of final points to note. First, this procedure would not displace other methods of compelling compliance, including traditional criminal and inherent contempt processes. These would remain available, including for cases in which the president invoked executive privilege.

Second, it should not be anticipated that the new process would generate a great deal of congressional litigation. Instead, the objective would be to convince agencies that litigation would be (from their perspective) entirely counterproductive. This realization would help create an executive branch “culture of compliance” with respect to congressional oversight, replacing what seems today to be more like a culture of defiance.

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