08/22/2012 07:29 pm ET Updated Oct 22, 2012

Fast and Furious (Part II)

When I last posted on this subject, the House of Representatives was poised to hold Attorney General Eric Holder in both criminal and civil contempt for failing to respond to the subpoena from the House Committee on Oversight and Government Reform. I suggested at the time that the criminal route was futile (as it turned out to be) and little more than a political statement. I also suggested that, if the House Committee really wanted the documents, it should bring a lawsuit and ask the federal courts to adjudicate the validity of President Obama's assertion that the documents sought were subject to executive privilege. On August 13, the Committee brought just such a lawsuit, and now it will be up to the federal courts to decide whether to enforce its subpoena.

There is more than a little irony in this issue, with these political adversaries, ending up in court. Four years ago, the House Judiciary Committee, then controlled by the Democrats, went to the same court (different judge) asking the court to require Harriet Miers, the former counsel to President George W. Bush, and Joshua Bolten, his chief of staff, to honor subpoenas directed to them, which the White House had told them to disregard. The same Justice Department that will defend its boss now also represented the defendants in the prior case. As discussed below, there are different legal issues on the merits of the claim of privilege, but the basic question of whether the federal courts may intervene in this situation is the same. Of course, the politics are reversed, with the Democrats in the Judiciary case rooting for Congress, opposed by the White House Republicans, and now the political tables are turned with the Republicans in control of the House and a Democrat is the president. But as the sayings go, "what goes around, comes around," or "what's sauce for the goose is sauce for the gander."

To me the threshold question of whether a committee of Congress has the right to go to court over a contested claim of privilege by the executive branch was properly decided in the Judiciary Committee case in favor of Congress. (Disclosure: I was an informal consultant to the Committee in that case). The principal job of Congress is to legislate, and it cannot do that without having access to the relevant facts so that it can determine whether existing laws were adequate, and if not, what should be done to fix them. Access to witnesses and documents in the executive branch are often vital to making the necessary determinations, and if the president could just say no, it would both hamstring Congress and remove much of the incentive for inter-branch cooperation.

If Congress could not go to court, there is not much else it could do if the president refused a request for documents or told a witness not to testify. Passing a law is effective only if the Senate is willing to go along and the president does not veto it. Appropriations' riders sometimes work, but they too are subject to a presidential veto. The Senate can refuse to confirm presidential nominees, but the House has no role in the process, and the Senate is unlikely to take on a House battle like this, especially since the Senate is controlled by the president's party. If the House really wanted to escalate the controversy, it could have its sergeant at arms try to arrest the attorney general for contempt of Congress, but that seems quite much for a dispute like this or most others. Finally, the House has the power to commence impeachment proceedings against cabinet officers such as AG Holder, but it would be unavailable for those who have left the government and may not reach everyone who might have information or documents.

There are thousands of documents that the House believes are subject to its subpoenas that have not been turned over or were heavily redacted. Many of them relate to the events surrounding the failed Fast and Furious operation, but the Committee's lawsuit asserts that it has been able to obtain enough evidence on the operation itself, some of it from whistleblowers, that it has decided not to ask for any document that was created before February 4, 2011. That is the date on which the department wrote a letter to the Committee asserting that the alleged gun-walking operation, under which a bureau within the department knowingly allowed guns to be illegally transported across the Mexican border, was false. Almost ten months later, on December 2, 2011, the department admitted that its February 4 letter "contains inaccuracies," and at the same time "formally withdrew" the earlier letter. Given this chain of events, it is hardly surprising that a House Committee, especially one led by the opposition party, would want to know why the Committee was given information now admitted to be false. That brought about the second, post-February 4, phase of the Committee's investigation regarding the origins of the February 4 letter. Although the Attorney General's response to requests for pre-February 4 documents might be characterized as grudging (or worse), he has adamantly refused to release any documents relating to the facts that led to the "inaccuracies" in the February 4th letter or how the Department came to realize that it had mislead Congress (or worse).

After considerable back and forth of the kind that is hardly unusual in these situations, the parties reached an impasse, and the House began contempt proceedings. At that point, President Obama asserted executive privilege for all withheld documents, although it seems clear that the president saw few if any of them, and there is no reason to believe that others at the White House were involved with the matter, at least until the Committee issued its subpoenas. If that invocation was intended to cause the House the back off, it appears to have had the opposite effect, leading almost immediately to a contempt vote and now to this lawsuit.
The department will almost certainly do what it does, almost reflexively, in all these cases, round up all the usual defenses that are designed to prevent the court from reaching the merits of the privilege claim. As in the prior Judiciary Committee case, they should fail. At that point the next issue will be whether the claim of an across-the-board privilege for all documents created after February 4 can be sustained without any additional showing of some potential harm to the executive branch. Insofar as the claim has been flushed out, it appears to be that the department is entitled to conduct its investigations into mistakes such as this entirely on its own (it has referred the matter to its own inspector general) with no role for Congress at all. It does not appear that the Department is willing to release some or all of the documents once the IG has completed his work, which might be a sensible resolution assuming that the IG issues a report in the near future. Rather, the claim appears to be much broader and not to be dependent on time or on what use Congress might want to make of the records being withheld.

No cases come to mind that support such a broad claim of privilege. It is not clear that executive privilege asserted by the president extends to records that neither he nor his staff saw and that were not related to White House matters, other than the subpoena response. But if some department records might be covered by that limited privilege, it is hard to believe that every such record would be withholdable on that basis.

There is another privilege that the attorney general appears to use to support his actions, the so-called deliberative process privilege that protects agencies from having to turn over records that reflect internal, generally pre-decisional, deliberations. The details of the privilege are less important than are several of its limits that appear to come into play: first, it is generally not a proper basis for refusal to produce records for Congress; second, when claims like this are made in court in litigation involving the government, courts generally balance the need for executive confidentiality against the litigant's need for the document, rather than automatically ruling in favor of the government; and third, even in cases under the Freedom of Information Act, under which need is legally irrelevant, internal documents that contain facts, in contrast to opinions and recommendations, cannot be withheld. Indeed, the courts regularly require the release of the factual portions of documents that contain advice where that advice can still be withheld. It is almost inconceivable that some of the post February 4 documents do not fall into this factual category, such as memos or emails reflecting that a meeting was held and who attended. It is hard to imagine that a court will sustain a claim of the breadth made by the president and the attorney general in this case, but it appears that it will have to decide that question unless the executive branch recognizes the weakness of the blanket claim of privilege.

Assuming that the court gets to the merits of the claim as applied to individual documents, or more likely categories of documents, how should it approach the issue? The judge in the Judiciary Committee case only ruled that the defendants had to show up and make specific claims of privilege, without explaining what law would apply if they made such claims. In other recent executive privilege cases, the courts have examined the interest of the requester in having the records against the interest of the withholder in keeping them to itself. Surely, one thing the court could do is insist that Congress not make the documents public without some protections for the attorney general, but that will not resolve the case itself, which will still require the court to strike an appropriate balance. At that point the parties might seek a neutral person -- a Republican former attorney general or White House counsel should be available -- to help the parties decide what is really important to each.

But if that does not happen, the court will need to know what is really in those documents and why the department won't make them available, as well as knowing why Congress wants them (other than because the attorney general won't give them to it). That raises the issue of congressional need, and at that point the Committee's case becomes a little shaky because its legitimate legislative purpose is less than clear. When the investigation related to the Fast & Furious operation itself, Congress pretty clearly needed to know what happened to determine whether additional restrictions needed to be placed on those entities responsible for it to assure that it was not repeated. But the documents subject to the lawsuit relate only to the post February 4 period, long after Fast and Furious had been shut down If, as the complaint alleges, the department is guilty of obstruction of justice or perjury, no new laws are needed in those areas. Although the U.S. attorney refused to bring a criminal contempt against his boss, that does not mean that, if he were presented with credible evidence that individuals in the Department may have committed offenses under the criminal law, he would not commence an investigation, or ask the attorney general to appoint a special prosecutor, as was done with the Valerie Plame leak that led to the conviction of Scooter Libby.

The Committee is not entirely clear what specific need it has for these post-February 4 documents. Vague suggestions about legislation are not likely to suffice, and the fact that the Committee is entitled to engage in oversight, or conduct investigations, does not give it a license to roam through executive files without a valid legislative purpose. To be sure, Congress cannot always know what it will do with what it finds, because, by definition, it has not seen the documents yet. But if the documents do, in fact, involve internal Justice Department deliberations, the court is likely to be quite reluctant to override the privilege claims unless Congress can identify a more concrete and legitimate purpose than it has to date.
There is one plainly valid purpose that the House, and only the House, could raise, but has not to date. Moreover, it is a purpose that would conclusively resolve the need issue in favor of the Committee. The Constitution gives the House the sole power of impeachment, meaning the power to charge officials such as Attorney General Holder with conduct that could lead to his removal from office if the Senate found him guilty of those charges. If the House believes that it was lied to, or that Justice Department officials obstructed its investigation, those would surely be grounds to begin an impeachment investigation, as former President Richard Nixon can attest.

Given the partisan nature of this situation, and the apparent belief by the Committee that such conduct occurred, it is almost bizarre that it did not include possible impeachment as a basis for obtaining these documents. And if it made such a claim, even the pendency of the IG investigation might well have to take a backseat to the express power given to the House to begin impeachment proceedings. It may not be too late to add that allegation, although doing so during the presidential campaign may be too incendiary even for the House. And, of course, if Eric Holder steps down after the election, the impeachment claim as to him evaporates.

In the Judiciary Committee case, the court ordered the defendants to honor the subpoena and make any claims of privilege on a document by document or question by question basis. The order was stayed by the court of appeals until after the election. When the White House changed hands, the parties worked out an agreement, and the litigation was concluded. Perhaps that will happen here, but if President Obama is re-elected, and the Republicans retain control of the House, it looks like some very contentious inter-branch litigation will follow.