Oversight v. Holder

• Decision Date: 30 September 2013
• Docket Number: Civil Action No. 12–1332 (ABJ)
• Citation: 979 F.Supp.2d 1
• Court: U.S. District Court — District of Columbia
• Parties: Committee on Oversight and Government Reform, United States House of Representatives, Plaintiff, v. Eric H. Holder, Jr., Attorney General of the United States, Defendant.

979 F.Supp.2d 1

Committee on Oversight and Government Reform, United States House of Representatives, Plaintiff,

v.Eric H. Holder, Jr., Attorney General of the United States, Defendant.

Civil Action No. 12–1332 (ABJ)

United States District Court, District of Columbia.

September 30, 2013

Christine Marie Davenport, Eleni Maria Roumel, Kerry William Kircher, Mary Beth Walker, Todd Barry Tatelman, William Bullock Pittard, IV, U.S. House of Representatives, Washington, DC, for Plaintiff.

Eric R. Womack, Gregory Peter Dworkowitz, Ian Heath Gershengorn, John Russell Tyler, Luke M. Jones, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

The Committee on Oversight and Government Reform of the United States House of Representatives has filed this action to enforce a subpoena it issued to the Attorney General of the United States, Eric H. Holder, Jr. The Attorney General refused to produce a portion of the records called for by the subpoena on the grounds that they are covered by the executive privilege, and the Committee seeks a declaration that the invocation of the privilege is invalid in this instance and that the documents must be produced. The matter is before the Court on defendant's motion to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6): the Attorney General takes the position that a dispute between the legislative and executive branches must be resolved through negotiation and accommodation, and that the judiciary may not, or at least, should not, get involved.

The motion to dismiss will be denied. The fact that this case arises out of a dispute between two branches of government does not make it non-justiciable; Supreme Court precedent establishes that the third branch has an equally fundamental role to play, and that judges not only may, but sometimes must, exercise their responsibility to interpret the Constitution and determine whether another branch has exceeded its power. In the Court's view, endorsing the proposition that the executive may assert an unreviewable right to withhold materials from the legislature would offend the Constitution more than undertaking to resolve the specific dispute that has been presented here. After all, the Constitution contemplates not only a separation, but a balance, of powers.

In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.

United States v. Nixon, 418 U.S. 683, 707, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974).

This case arises out of the Committee's investigation into Operation Fast and Furious, a law enforcement operation that was launched by the Bureau of Alcohol, Tobacco, and Firearms (“AFT”) and the U.S. Attorney's office in Phoenix, Arizona in October of 2009 to confront the suspected illegal flow of firearms from the United States to drug cartels in Mexico. In 2011, the Committee began to investigate the use of certain tactics involved in that operation—tactics which had been previously used by the ATF in Phoenix in 2006, and which have become the subject of intense criticism and public debate. The Committee focused in particular on the decision to permit the guns to “walk”—that is, to let straw purchasers from the cartels carry firearms across the border without being apprehended under the theory that agents would be able to track the weapons to their final destination.

The lawsuit before the Court does not address the existence of the operation or the propriety of those 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. But during the early stages of the investigation, the Department of Justice wrote a letter to the Committee denying that the gun walking had taken place, and that letter, dated February 4, 2011, was wrong.

The Attorney General subsequently informed Congress that the letter was incorrect, and it was officially withdrawn by December of 2011. But in the meantime, the Committee shifted its focus to investigating how and why the Department of Justice gave it inaccurate assurances. In October 2011, it issued a subpoena for documents generated both before and after February 4, which it maintained would illuminate how the Department came to incorrectly deny on February 4 that the tactic had been utilized. The Attorney General produced some records, but he declined to produce others. In a letter dated June 20, 2012, the Deputy Attorney General, James M. Cole, stated that the President had asserted executive privilege over documents dated after February 4, 2011 because their disclosure would reveal the agency's deliberative processes.

The Committee then filed this action to enforce its subpoena. It maintains that the assertion of executive privilege is invalid in this situation since there is no claim that the documents contain advice provided to the President or that they touch upon core constitutional functions of the President. The Attorney General has moved to dismiss the case on the grounds that that the Committee has no standing to bring it and the Court has no jurisdiction to hear it. He urges in the alternative that the Court should exercise its discretion to decline to hear it.

The Court is mindful that “federal courts may exercise power only in the last resort ... and only when adjudication is consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process.” Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (internal citations and quotation marks omitted). But here, the narrow legal question posed by the complaint is precisely the sort of crisp legal issue that courts are well-equipped to address and routinely called upon to resolve.

The defendant warns that an assumption of jurisdiction in this case would mark an unprecedented expansion of the role of an Article III court. But there has been binding precedent to the contrary in this Circuit for more than thirty-five years. In United States v. AT & T, 551 F.2d 384, 390 (D.C.Cir.1976), the Court of Appeals declared: “the mere fact that there is a conflict between the legislative and executive branches over a congressional subpoena does not preclude judicial resolution of the conflict.” And five years ago, another court in this District carefully considered and rejected the same arguments being advanced by the Attorney General here. In a case involving a different Congress and a different President, Committee on the Judiciary v. Miers, 558 F.Supp.2d 53 (D.D.C.2008), the court concluded in a persuasive opinion that it had jurisdiction to resolve a similar clash between the branches.

For the reasons set forth in Miers, as well as those detailed below, the Court finds that neither the Constitution nor prudential considerations require judges to stand on the sidelines. There is federal subject matter jurisdiction over this complaint, and it alleges a cause of action that plaintiff has standing to bring. The Court cautions that this opinion should not be taken as any indication of its views on the merits of the dispute, which have yet to be briefed, argued, or considered in any way. The defendant's pleadings stress the importance of the privilege and the role it plays encouraging candor in executive branch deliberations and decision making. But at this stage of the proceedings, the sole question before the Court is whether it can and should exercise jurisdiction to hear the case—not whether the documents are covered by the privilege. This opinion does not grapple with the scope of the President's privilege: it simply rejects the notion that it is an unreviewable privilege when asserted in response to a legislative demand.

BACKGROUND¹

In the autumn of 2009, the Phoenix field office of the ATF launched Operation Fast and Furious, in which the ATF knowingly allowed firearms purchased illegally in the United States to be unlawfully transferred to third-parties and transported into Mexico. Am. Compl. [Dkt. # 35] ¶ 1. The goal of the decision to let the guns “walk” without interdiction by law enforcement was to enable ATF to follow the flow of the firearms to the Mexican drug cartels that purchased them. Id. The tactic was brought to the public's attention after guns that had been illegally purchased in the United States were recovered at the scene of a December 15, 2010 firefight in Arizona in which U.S. Customs and Border Protection Agent Brian Terry was killed. See Am. Compl. ¶ 2.

The following month, Members of Congress began inquiring about Operation Fast and Furious, and Senator Charles Grassley wrote letters to the ATF requesting information about allegations that the agency had used these inappropriate law enforcement tactics. Am. Compl. ¶ 2 and n.3. Writing on behalf of the law enforcement agency, the Department of Justice initially denied the allegations. Id. ¶ 2. Assistant Attorney General Ronald Weich wrote in a February 4, 2011 letter to Senator Grassley: “[T]he allegation ... that [ATF] ‘sanctioned’ or otherwise knowingly allowed the sale of assault weapons to a straw purchaser who then transported them into Mexico—is false. ATF makes every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico.” Id. Soon after, though, the Attorney General asked the Inspector General of the Department to conduct an investigation into the allegations contained in Senator Grassley's letter. Def.'s Mem. at 9. And on March 31, 2011, the Committee on Oversight and Government Reform of the...