On October 11, 2011, the committee caused a Congressional subpoena to be issued to the Attorney General (at the time, Eric Holder) for records involving the ill-fated Fast and Furious program that had been run out of his department. When Holder declined to produce the documents, claiming they were subject to deliberative process executive privilege, the House Committee turned to the courts. The court has now ruled, ordering the Attorney General to produce them to the Congress. (Committee on Oversight and Government Reform, United States House of Representatives v. Lynch (US District Court for D.C., CA No. 12-1332 (ABJ), 1/19/16))
The case has involved a few skirmishes that led to the latest ruling. First, Justice argued that the court either did not have or should not exercise jurisdiction over a purely “political dispute between the executive and legislative branches,” warning it would “threaten the constitutional balance of powers if the Court” waded into the matter. (p. 2) The district court did not agree, stating “To give the Attorney General the final word would elevate and fortify the executive branch at the expense of the other institutions that are supposed to be its equal…” (p. 3)
Next up was the Committee’s argument that there could be no deliberative process privilege invoked by the executive branch in response to a Congressional subpoena when no communication directly with the President was involved. The court did not buy that argument, indicating the privilege could be invoked in response to a congressional demand in certain circumstances. However, it ruled it was not proper to assert a blanket executive privilege over all records as was done here. The court ordered Justice to go through documents item by item and determine which fit the deliberative process criteria. Further, Justice was ordered to create a detailed inventory identifying those documents withheld. (pp. 3-4)
The next skirmish gave rise to the court’s latest ruling. The Committee asked the court to compel Justice to produce every document listed on its inventory of privileged documents, arguing none of them are deliberative and even if they are this does not override the Committee’s need for the material. The court refuses to agree to such a blanket finding. Nevertheless, it also finds there is no need for it to “invade the province of the legislature and undertake its own assessment of the legitimacy of the Committee’s investigation, because the Department of Justice has conceded the point,….” citing several instances where Justice referred to the legitimate oversight interest of Congress in the matter. (pp. 5-6)
Weigh this against the court’s additional finding that any “harm” that might come from releasing the documents to the committee “has already been self-inflicted,…” pointing out that the documents were pretty much described in detail in a Justice Inspector General report made public in 2012. (p. 6)
Hence, any privilege is overridden “given the executive’s acknowledgement of the legitimacy of the investigation, and the fact that the Department itself has already publicly revealed the sum and substance of the very material it is now seeking to withhold.” (p. 6)
So, who actually “won” this case? The legislative branch finally will get the documents (assuming they are in fact turned over now without further appeals by Justice), but it’s now been 4+ years since the subpoena was issued.