Monday, August 13, 2012
The House Committee on Oversight and Government Reform filed its anticipated complaint today in the United States District Court for the District of Columbia against Attorney General Eric Holder, seeking a declaration that AG Holder's assertion of executive privilege is without merit and that his failure to turn over certain documents to the Committee was without justification, and requiring AG Holder to turn over certain "obstruction" documents.
The complaint seeks a mere subset of the larger body of documents originally sought by the Committee--the so-called "Obstruction Component" documents, relating to DOJ's alleged obstruction of the Committee's investigation into the Fast and Furious program. (The Committee does not seek other documents covered in its earlier subpoena--the "Operations Component" documents, related to the operations of the program--although it maintains its right to seek and to receive those documents.) The Committee explains, in paragraph 62 of the complaint:
The Department's and the Attorney General's response to the Committee's investigation has been woefully inadequate in every respect. However, notwithstanding their lack of cooperation, the Committee has managed to obtain sufficient facts--principally through the aid of DOJ whistleblowers--to begin reporting to the American people on the Operations Component of its investigation. Accordingly, although the Committee has a legal and constitutional right to obtain from the Attorney General all documents responsible to the Holder Subpoena not already produced, the Committee chooses in this action to seek only a limited subset of such responsive but unproduced documents, namely, those documents that are relevant to the Obstruction Component of the Committee's investigation which the Committee cannot obtain from any other source. To that end, the Committee here seeks to compel the Attorney General to produce those documents dated or that were created after February 4, 2011, that are responsive to Categories 1, 4, 5, and 10 of the Holder Subpoena [attached to the complaint]. In the Committee's judgment, this limited subset of responsive documents--referred to herein as the "Post-February 4 Subset"--includes or constitutes the documents most likely to be relevant to the Obstruction Component of the Committee's investigation and, when produced, most likely to enable the Committee to complete its investigation.
Here's what the Committee thinks of the administration's executive privilege claim:
The principal legal issue presented here is whether the Attorney General may withhold that limited subset on the basis of "Executive privilege" where there has been no suggestion that the documents at issue implicate or otherwise involve any advice to the President, and where the Department's actions do not involve core constitutional functions of the President.
No Court has ever held that "Executive privilege" extends anywhere near as far as the Attorney General here contends that it does. Indeed, it is no exaggeration to say that the Attorney General's conception of the reach of "Executive privilege," were it to be accepted, would cripple congressional oversight of Executive branch agencies, to the very great detriment of the Nation and our constitutional structure. Accordingly, the Committee asks this Court to reject the Attorney General's assertion of "Executive privilege" and order him forthwith to comply with the Committee's subpoena, as set forth below.
Compl. at page 3.
Recall that AG Holder urged the assertion of the privilege based on "executive branch deliberative communications"--supported, AG Holder argued, by several DOJ and OLC opinions (including DOJ advice, authored by Paul Clement, in the Bush administration relating to the assertion of executive privilege in the congressional investigation on the politicization of the Justice Department). See Holder Memo at 2-3.
The privilege dispute thus centers on whether the President himself had to be part of the communications--or whether the communication had to be in relation to advice to the President--or whether the privilege applies more broadly over "executive branch deliberative communications" that did not involve the President directly.
In the D.C. court's last foray into this and similar issues, in a similar case involving above-mentioned congressional investigations into the politicization of the Justice Department, Committee on the Judiciary v. Miers, Judge John D. Bates ruled that the Committee jumped the several significant hurdles to get the case into court and that White House Counsel Harriet Miers did not have absolute immunity from testifying before Congress. (The case was stayed pending appeal and resolved itself by agreement of the parties in January 2009.)
But while Judge Bates's opinion dealt at length with (and ultimately rejected) the defendants' claimed barriers to the Committee's suit, it did not resolve the executive privilege issues presented in this case.
Miers may provide useful guidance, though, for a more pragmatic reasons: The D.C. Circuit in that case declined to put the appeal on the fast track, suggesting that the case could become moot when the 110th Congress, along with its subpoenas, expired.
This case, like that one, will not reach final judicial resolution (and maybe even not a district court ruling) before the end of the current Congress. The case could fizzle out--that is, moot out, because the subpoena will have expired with the current Congress--when the new Congress comes in . . . unless the new House reauthorizes it.