Efforts to settle lengthy litigation over congressional subpoena power and executive privilege hit a snag this week. Judge Amy Berman Jackson declined to vacate her executive privilege and separation of powers rulings in the fight over material the House Committee on Oversight and Government Reform subpoenaed from the Department of Justice in its Obama-era investigation of Operation Fast and Furious. Elimination of those rulings was a condition of the proposed settlement as the case sits on appeal before the D.C. Circuit, casting doubt on whether there is still a path to a negotiated resolution. So far, according to Josh Gerstein’s report in Politico, neither the department nor the committee have indicated their intentions from here.
The case relates, of course, to the tussle over documents in the misguided tactics federal authorities used along the southwest border under the Obama administration to counter gun trafficking. In her ruling this week on the document fight, Judge Jackson essentially refused to allow the parties to put the toothpaste back in the tube. Now, if they settle before the D.C. Circuit rules, the political branches will have to live with the precedent generated—unsatisfactory to both sides—by Congress’ choice to take their dispute to the courts.
The Oversight Committee and the Justice Department had negotiated a conditional settlement agreement in which the department would agree to search for and produce additional documents, but only “upon vacatur of the District Court’s orders of August 20, 2014 and January 19, 2016.”
So what were both branches seeking by getting these orders erased?
Overall, throughout the litigation, Congress has prevailed in its efforts to obtain rulings designed to pry more records from the department related to Operation Fast and Furious. However, both Congress and the executive branch lost on long-held—and cherished—legal arguments they had deployed in the tussle over information access.
The court delivered some big-ticket congressional oversight rulings in this case along the way:
The Justice Department lost its arguments that the court didn’t have authority to decide the case. It had moved to dismiss the lawsuit on the grounds that “the court did not have—or should decline to exercise—jurisdiction over a case the Justice Department characterized as a political dispute between the executive and legislative branches of government.” Judge Jackson rejected that argument in a 2013 order (apparently not among the vacatur requests), citing United States v. Nixon,and determined that the court “had not only the authority, but the responsibility, to resolve the conflict.”
The Oversight Committee lost its argument that deliberative process privileges don’t apply to Congress. Congress has long maintained that the deliberative process privilege—designed to shield confidential internal executive branch deliberations from disclosure—was unavailable, as a matter of law, in response to a congressional subpoena. Congress had long argued that it was a common law, rather than constitutional, privilege, and therefore had no basis to defeat a congressional request for information. Judge Jackson disagreed. In the new ruling rejecting the settlement conditions, the court described the holding of its 2014 order: “It determined that there is a constitutional dimension to the deliberative process aspect of the executive privilege, and that the privilege could be properly invoked in response to a legislative demand.” As I noted at the time, this was a significant doctrinal loss for Congress.
The Justice Department lost its argument that it could assert privilege over document categories.The department argued that materials created about how to respond to the congressional investigation, after some faulty information had been provided to Sen. Charles Grassley (R-Iowa) in early 2011, were beyond congressional need and that such ‘meta-investigations’ invaded separation of powers. In the 2014 order, the Justice Department lost that battle. Instead, the court endorsed a congressional need for those documents but required privilege determinations on a document-by-document basis. The court also required the department to create a document-level privilege log, which it had been long resisting.
The Oversight Committee lost its argument that deliberative process privilege did not cover meta-investigations. Thereafter, the committee argued, as a categorical matter, that deliberative process privileges do not apply to intra-agency communications about how to respond to Congress or the media. The court again rejected this second version of a categorical argument, but held that the privilege, while applicable, “is a qualified one that can be overcome by a sufficient showing of need for the material.”
The Justice Department lost its argument that disclosure to the inspector general did not waive privilege. Rather than engage in that balancing of congressional need against executive confidentiality, the court held in its 2016 order that the Justice Department had “already disclosed” the documents by providing them to the department’s inspector general. From the Justice Department perspective, that was a disclosure within the executive branch that requires a different constitutional analysis than a disclosure to Congress and should not amount to a waiver of privilege. That ruling creates an incentive for executive branch agencies to withhold materials they deem privileged from the relevant inspectors general if doing so would establish a waiver of privilege vis-à-vis Congress.
I was the lawyer who primarily handled this portfolio for the White House during the dispute until my departure in November 2012. In 2013, I cautioned that judicial rulings could affix concrete meanings to legal arguments that were really better viewed as tools of leverage in a legal-political competition between the branches. “While the courts have a role to play as final arbiter, the currency of congressional-executive relations is accommodation and compromise.” After neither side fully vanquished the other, there appears to be an appetite to pretend none of those rulings happened.
When later analyzing the 2016 order, I observed that its framing in the popular press as an unmitigated “win” for Congress and “loss” for the executive belied a more complicated set of legal rulings that “reinforces some longstanding executive branch legal arguments that Congress has perennially disputed.”
However, neither side is happy with the rulings that have been generated by this litigation. Now that Judge Jackson has declined the invitation to hit reset, the legislative and executive branches will have to decide whether to live with the district court precedent as it stands or roll the dice with an appellate ruling by the D.C. Circuit. Either side could win total victory or suffer total defeat, or the D.C. Circuit could continue the district court’s path of Solomonic baby-splitting. But after all this water under the bridge, the parties probably have been somewhat chastened from the kind of rosy assessments of their likelihood of unmitigated success that litigants often entertain at the front end of a court case.
Photo of DOJ Inspector General Michael Horowitz testifying September 20, 2012 about his Operation Fast and Furious report by Mark Wilson/Getty Images.