On Monday, a federal district court refused to dismiss the congressional civil contempt action in Committee on Oversight and Government Reform v. Holder (“Holder”). This opinion could foreshadow significant development in the law of congressional oversight, executive privilege, and structural separation of powers itself. For Just Security readers, the rationale of this ruling could significantly enhance congressional power to enforce national security oversight prerogatives by means of civil litigation rather than more politically costly remedies.

This case stems from document disputes between Congress and the Executive Branch related to the congressional investigation into problematic federal tactics designed to stop cross-border gunrunning to Mexican drug cartels. Congress has primarily focused on “Operation Fast and Furious” (“Fast & Furious”), a multi-agency investigation led by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). The core allegation of the congressional investigation is that ATF practices allowed assault weapons that should have been seized or otherwise controlled into the stream of commerce. Further, there is evidence that a number of weapons at issue have been used in violent crimes on both sides of the U.S.-Mexico border, including the murder of a U.S. Customs and Border Patrol Agent, Brian Terry.

Congress specifically authorized the Oversight Committee to file this case in connection with a resolution finding Attorney General Eric Holder in contempt. The Attorney General withheld the subpoenaed documents pursuant to an assertion of executive privilege by President Obama.

In a 44-page opinion, Judge Jackson (D.D.C.) rejected the Attorney General’s motion to dismiss. The Attorney General had moved to dismiss on the grounds that: (1) the Oversight Committee lacked standing, (2) the Court lacked jurisdiction, and (3) the Court should decline to exercise jurisdiction even if it exists. The opinion only resolves preliminary matters of justiciability and does not reach the merits. However, the justiciability rulings have constitutional significance in terms of allocation of power among the three branches. As for the merits, some language in the opinion suggests the Executive Branch may have a rough outing.

I would be less-than-candid if I did not acknowledge that, at one time, I was not a disinterested bystander in these proceedings. However, this is my best assessment of the opinion based on the public record.

I am not surprised that the Court would reject a categorical argument that the judiciary has no role. Woe unto the litigant who bears the burden of convincing a court it is without power. The opinion is also consistent with the weight of precedent preserving a judicial role, including Committee on the Judiciary v. Miers, United States v. AT&T (“AT&T I”), and United States v. Nixon (albeit in an intra-branch dispute). Our experience with the Nixon presidency lingers. In the case of a seismic constitutional crisis, the judiciary needs to have preserved a role for itself in restoring order.

As for the Attorney General’s standing argument, the Committee certainly seems like the kind of aggrieved party traditionally associated with litigants. On the related point of whether the matter constitutes a “case or controversy,” it is slightly more complicated even if the ruling represents an expected outcome.

I am, however, troubled by a number of aspects and implications of the Court’s opinion.

I am concerned about the Court’s decision to exercise jurisdiction as a discretionary matter at this stage. Here, the policy and constitutional equities are quite different than a categorical bar to jurisdiction. I worry the decision displays a lack of appreciation for accommodation and compromise. It also appears to give little attention to the fact that alternative non-judicial remedies are available to Congress, including the appropriations power, legislative authorization power, Senate’s advice-and-consent power, and impeachment of executive officials. It is important that the Court tread lightly.

In a law review article I’m working on (“Constitutional Conflict and Congressional Oversight”), I compare the exercise of court jurisdiction to the Heisenberg principle in quantum physics:

Professor Freund famously cautioned that “[i]n the eighteenth-century Newtonian universe that is the Constitution, an excessive force in one direction is apt to produce a corresponding counter-force.” However, in the modern universe of quantum theory, a more apt analogy for the courts in the congressional oversight context is the Heisenberg uncertainty principle: the act of court review itself – its mere gaze – could have unintended and damaging consequences to the constitutional scheme. (Footnotes omitted).

While the courts have a role to play as final arbiter, the currency of congressional-executive relations is accommodation and compromise. The Court addresses this concern by suggesting that settlement negotiations routinely occur in litigation (p. 43) but I think that subordinates the primacy of negotiation in separation-of-powers disputes. In AT&T I, the D.C. Circuit was more solicitous of this principle.

More troubling, after exercising jurisdiction, the Court nevertheless categorizes essential separation-of-powers questions on the merits of this dispute as potentially non-justiciable questions. Specifically, the Court suggests that questions of congressional “need for the material,” the “merits of the grounds for withholding” by the Executive Branch, and the adequacy of the Attorney General’s offers of accommodation 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 amendable to judicial determination.” (p. 42)

If a court is going to resolve an important dispute between Congress and the President, wouldn’t congressional need, withholding grounds, and accommodation alternatives be the essential inquiry? Otherwise, it sounds like the exercise could be almost clerical, i.e., assessing whether the committee had jurisdiction over the matter, whether the subpoena was duly executed, whether the documents in dispute were responsive, and the like. Or the Court could simply offer a binary ruling: deliberative process privilege is available or not, which would do a disservice. (Of course, it was substantive inquiry into needs and grounds that led the AT&T I court to decline assumption of jurisdiction.)

The need / grounds dichotomy is especially integral to this dispute. Judge Jackson acknowledges that the documents at this point do not address the problematic ATF tactics:

The facts have been uncovered; the risks inherent in the operation – risks that were tragically realized in the death of a federal law enforcement officer—have been exposed; and the Department has issued clear directives prohibiting similar conduct in the future. (p. 27)

The notion that the underlying facts about controversial ATF investigative tactics have come to light and remedied should bear on analysis of Congress’s need to intrude on Executive Branch deliberations.

This observation brings me to another troubling aspect of the Holder opinion. What is at issue now is Congress’s desire to conduct an “obstruction” investigation related to a February 4, 2011 letter to Sen. Charles Grassley (R-IA) that contained inaccurate information in response to his inquiry about initial Fast & Furious allegations. The Department later indicated it lacked confidence in the letter, which it ultimately withdrew. In fact, Congress received a fulsome factual airing on how it was drafted. Such disclosure was a major accommodation by the Executive Branch into its deliberative processes vis-à-vis Congress, but one that was warranted under the circumstances of the inaccurate representation. However, the congressional subpoena called for vastly broader and more intrusive information.

Not all deliberative processes are created equal. It is important to protect all sorts of Executive Branch deliberations, including policy formulation, personnel action, adjudicative proceedings, litigation positions, prosecutorial decisions, contract awards, pardon decisions, presidential appointments, presidential communications, and onward. Many of these deliberations must yield to congressional oversight interests, especially after a policy is enacted and the need for deliberative space is attenuated. Some, like pardon decisions, have independent constitutional significance as core presidential functions. Still others take on constitutional significance due to the facts of the particular deliberation coupled with a determination by the President that they are worthy of the imprimatur of executive privilege.

But Congress’s sprawling inquiry into “obstruction” by the Executive Branch, beyond the drafting of the offending letter to Sen. Grassley, is a horse of a different color. It seeks to peer into deliberations within the Executive Branch about how to deal with Congress itself. It invades the very “separation” in separation of powers.

As such, garden variety Freedom of Information Act (“FOIA”) litigation over deliberative processes, while instructive to a degree, is a wholly inapt analogy to the stakes involved in Holder. However, the Court appears willing to adopt the FOIA analogy. (p. 36) The Court is also dismissive of the special nature of the deliberations involved (p. 27, n. 7), at least in the context of rejecting the Attorney General’s framing of the question presented by the litigation.

Perhaps the Attorney General will appeal at this juncture and we will have new reasoning to assess. However, should the Court proceed to the merits, it is my sincere hope that it will see that congressional need and confidentiality grounds are essential elements of any effort to resolve this dispute. Further, I hope the court will evaluate need / grounds against the backdrop of other political remedies available to Congress. Finally, I hope it will exercise its jurisdiction gingerly, with due focus on mediation principles that facilitate accommodation and compromise rather than establishing categorical congressional entitlements. To do otherwise could do violence to structural separation of powers.