DOJ Must Give Some ‘Fast & Furious’ Records to House

WASHINGTON (CN) - The Justice Department must turn over some records of its internal deliberations over how to handle congressional and media requests related to the Fast and Furious gun-running scandal, a federal judge ruled Tuesday.

The lawsuit, filed in August 2012 by the House Committee on Oversight and Government Reform, is part of the committee's effort to force the Justice Department to release records related to Operation Fast and Furious, a program started in 2009 that allowed drug cartels to illegally purchase guns in the United States so law enforcement could track them once they reached Mexico.

The operation grew into a scandal when one of the guns purchased through the program fired a bullet that killed a federal law enforcement officer in 2010.

The Justice Department partially responded to the House committee's Oct. 11, 2011 subpoena - turning over a "considerable volume" of records - but none that were created after Feb. 4, 2011, according to Judge Amy Berman Jackson's opinion filed Tuesday in D.C. Federal Court.

This did not quench the committee's thirst for information about the operation, and it threatened to hold then-Attorney General Eric Holder in contempt. The department eventually told the committee President Barack Obama had decided to claim executive privilege over documents related to the department's response to Congress, according to the opinion.

The committee filed suit in August 2012 to force the Justice Department to release the documents held under this privilege. It claimed executive privilege did not apply to the department's response to Congress because these documents were not direct communications with the president.

The Justice Department disagreed, arguing the deliberative-process provision of executive privilege covered the whole set of records, according to the opinion.

After the case got to court the department produced more than 64,000 additional pages as well as a detailed list of the records it designated as privileged, according to the opinion.

The committee then shifted its argument slightly, claiming the documents withheld by the DOJ did not actually fall under this privilege because they did not concern the development of policy, according to the opinion.

But Jackson sided with the Justice Department on this point, saying court precedent "does not hold that the privilege is limited to deliberations concerning the formulation of policy."

Instead, the privilege is meant to ensure robust debate by protecting agencies from having to operate "in a fishbowl," Jackson wrote, quoting the D.C. Circuit decision in Mapother v. Department of Justice.

"And even if one were to draw a distinction between operation and policy-related matters, in ICM Registry, LLC v. Dep't of Commerce, the district court recognized that internal deliberations about public-relations efforts are not simply routine operational decisions: they are 'deliberations about policy, even if they involve "massaging" the agency's public image,'" Jackson wrote.

But Jackson didn't end up wholly on the Justice Department's side.

She determined that even though the records showing the department's deliberations about how to handle congressional and media inquiries into the Fast and Furious scandal were covered by privilege, the House committee's need for the records outweighed this qualified privilege, according to the opinion.

This is in part because the Justice Department has been upfront in acknowledging the committee's investigation as legitimate, and also because the agency has liberally referred to an Inspector General investigation that quotes from the very same documents the committee requested, according to the opinion.

"The department has already laid bare the records of its internal deliberations - and even published portions of interviews revealing its officials' thoughts and impressions about those records," Jackson wrote. "While the defense has succeeded in making its case for the general legal principle that deliberative materials - including the sorts of materials at issue here - deserve protection even in the face of a congressional subpoena, it can point to no particular harm that could flow from compliance with this subpoena, for these records, that it did not already bring about itself."

With that matter resolved, as well as a brief statement that eight records the department gave no reason for withholding must be turned over, Jackson turned to the question of whether her court has a role in the case anymore.

While the parties continue to squabble over documents the department did not originally produce and those it did not include in the detailed list of documents, Jackson strongly suggested the court has done all it can do.

"In the end, the court did not - and it should not - accept an assignment to supervise the entire contentious relationship between these parties," Jackson wrote. "It took jurisdiction over the single, legal issue presented by the complaint, and what the lawsuit is about is clear."

Jackson ordered the parties to file notice by Feb. 2 stating their positions on whether the case should be dismissed as moot.

Utah Republican Rep. Jason Chaffetz, chair of the House Oversight and Government Reform Committee, praised Jackson's decision in a statement Tuesday.

"Today's decision will help us advance the Fast & Furious investigation into this administration's gun running operation," Chaffetz said. "After allowing guns to walk, the administration's attempt to hide behind executive privilege only adds insult to injury. While the decision doesn't give us access to all the documents, it is an important step forward. We will continue investigating until we get to the truth."

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