Holder Begs Court to Stop Document Release on Fast and Furious
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by Matthew Boyle 17 Jan 2013, 1:16 PM PDT
Attorney General Eric Holder and his Department of Justice have asked a federal court to indefinitely delay a lawsuit brought by watchdog group Judicial Watch. The lawsuit seeks the enforcement of open records requests relating to Operation Fast and Furious, as required by law.
Judicial Watch had filed, on June 22, 2012, a Freedom of Information Act (FOIA) request seeking all documents relating to Operation Fast and Furious and “specifically [a]ll records subject to the claim of executive privilege invoked by President Barack Obama on or about June 20, 2012.”
The administration has refused to comply with Judicial Watch’s FOIA request, and in mid-September the group filed a lawsuit challenging Holder’s denial. That lawsuit remains ongoing but within the past week President Barack Obama’s administration filed what’s called a “motion to stay” the suit. Such a motion is something that if granted would delay the lawsuit indefinitely.
Judicial Watch President Tom Fitton said that Holder’s and Obama’s desire to continually hide these Fast and Furious documents is “ironic” now that they’re so gung-ho on gun control. “It is beyond ironic that the Obama administration has initiated an anti-gun violence push as it seeking to keep secret key documents about its very own Fast and Furious gun walking scandal,” Fitton said in a statement.
“Getting beyond the Obama administration’s smokescreen, this lawsuit is about a very simple principle: the public’s right to know the full truth about an egregious political scandal that led to the death of at least one American and countless others in Mexico. The American people are sick and tired of the Obama administration trying to rewrite FOIA law to protect this president and his appointees. Americans want answers about Fast and Furious killings and lies.”
The only justification Holder uses to ask the court to indefinitely delay Judicial Watch’s suit is that there’s another lawsuit ongoing for the same documents – one filed by the U.S. House of Representatives. Judicial Watch has filed a brief opposing the DOJ’s motion to stay.
As the House Committee on Oversight and Government Reform was voting Holder into contempt of Congress for his refusal to cooperate with congressional investigators by failing to turn over tens of thousands of pages of Fast and Furious documents, Obama asserted the executive privilege over them. The full House of Representatives soon after voted on a bipartisan basis to hold Holder in contempt.
There were two parts of the contempt resolution. Holder was, and still is, in both civil and criminal contempt of Congress. The criminal resolution was forwarded to the U.S. Attorney for the District of Columbia Ronald Machen–who works for Holder–for prosecution. Despite being technically required by law to bring forth criminal charges against Holder, under orders from Holder’s Department of Justice Machen chose to ignore the resolution.
The second part of the contempt resolution–civil contempt of Congress–allowed House Republicans to hire legal staff to challenge President Obama’s assertion of the executive privilege.
That lawsuit remains ongoing despite Holder’s and the DOJ’s attempt to dismiss it and settle it.
It’s unclear what’s in the documents Obama asserted privilege over, but the president’s use of the extraordinary power appears weak. There are two types of presidential executive privilege: the presidential communications privilege and the deliberative process privilege. Use of the presidential communications privilege would require that the president himself or his senior-most advisers were involved in the discussions.
Since the president and his cabinet-level officials continually claim they had no knowledge of Operation Fast and Furious until early 2011 when the information became public–and Holder claims he didn’t read the briefing documents he was sent that outlined the scandal and how guns were walking while the operation was ongoing–Obama says he’s using the less powerful deliberative process privilege.
The reason why Obama’s assertion of that deliberative process privilege over these documents is weak at best is because the Supreme Court has held that such a privilege assertion is invalidated by even the suspicion of government wrongdoing. Obama, Holder, the Department of Justice, the Bureau of Alcohol, Tobacco, Firearms and Explosives and virtually everyone else involved in this scandal have admitted that government wrongdoing actually took place in Operation Fast and Furious.
In Fast and Furious, the ATF “walked” about 2,000 firearms into the hands of the Mexican drug cartels. That means through straw purchasers they allowed sales to happen and didn’t stop the guns from being trafficked even though they had the legal authority to do so and were fully capable of doing so.
Border Patrol Agent Brian Terry and hundreds of Mexican citizens–estimates put it around at least 300–were killed with these firearms.
Holder Begs Court to Stop Document Release on Fast and Furious
DOJ Seeks to Stall JW Lawsuit Seeking Access to Fast and Furious Records
January 17, 2013
Judicial Watch
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Judicial Watch Files Brief Opposing Government Stonewalling:
Justice Department “has disparaged the public’s right to request records of its government”
(Washington, DC) –Judicial Watch announced today that it filed a brief on January 15, 2013, in response to an Obama Department of Justice (DOJ) motion to indefinitely delay consideration of Judicial Watch’s Freedom of Information Act (FOIA) lawsuit seeking access to Operation Fast and Furious records withheld from Congress by President Obama under executive privilege on June 20, 2012 (Judicial Watch, Inc. v. U.S. Department of Justice (No. 1:12-cv-01510)).
Rather than respond substantively to Judicial Watch’s FOIA lawsuit, the DOJ argued in court that the lawsuit should be subject to a stay of proceedings because it is “ancillary” to a separate lawsuit filed by the House Oversight and Government Reform Committee against the DOJ. The Court “should let the process of negotiation and accommodation [between the House Committee and the DOJ] run its course, and then decide with the input of the parties whether and how this action may appropriately proceed at that time,” the DOJ argued, effectively abrogating the FOIA. The Obama DOJ even suggested that the Judicial Watch litigation might encourage the Congress to fight harder to get the same documents in separate litigation.
Judicial Watch counters that FOIA demands a response and that its lawsuit is more straightforward than the House lawsuit and ripe for consideration on its merits. A decision on the House Committee lawsuit, meanwhile, could be delayed for months, if not years:
This notion that [Judicial Watch’s] lawsuit is in some way inferior [to the House lawsuit] is simply incorrect. [Judicial Watch] has as much of a right under the law as the House Committee to seek access to records of Defendant. In fact, since Defendant does not challenge [Judicial Watch’s] claim on jurisdictional grounds, it could be reasonably argued that [Judicial Watch’s] right is greater – it is certainly clearer and simpler – than that of the House Committee…Whereas [Judicial Watch’s] FOIA lawsuit is ripe for adjudication on the merits, the House Committee suit could be months, if not years, away from reaching the same stage.
The DOJ also argued that Judicial Watch’s lawsuit might somehow interfere with negotiations between the president and Congress. Judicial Watch countered: “Regardless of any potential resolution in that case, Defendant in this action will still be required to satisfy its obligations under FOIA, including justifying its withholdings. [Judicial Watch’s] lawsuit simply does not vanish if and when the House Committee suit is resolved.”
Judicial Watch concludes: “[Judicial Watch] has a statutory right to the requested records and to have Defendant’s denial of Plaintiff’s FOIA request reviewed by this Court. [Judicial Watch’s] claim is now ripe for adjudication, and [Judicial Watch] is prepared to brief the issues. Defendant simply seeks to delay the date that it must justify its claims of exemption. Defendant has not demonstrated why [Judicial Watch’s] rights should be immoderately and oppressively delayed; it has only disparaged public’s right to request records of its government. For the foregoing reasons, [Judicial Watch] respectfully requests that Defendant’s request for an indefinite stay of the proceedings be denied.”
Fast and Furious was a DOJ/Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) “gun-running” operation in which the Obama administration reportedly sold guns to Mexican drug cartels in hopes that they would end up at crime scenes. Fast and Furious weapons have been implicated in the murder of Border Patrol Agent Brian Terry and countless others in Mexico.
Congressional investigators, led by Rep, Darryl Issa, Chairman of the House Oversight and Government Reform Committee, have fought to secure records related to the Fast and Furious program, but the DOJ continues to withhold responsive records from disclosure. On June 20, 2012, President Obama made a highly controversial decision to assert Executive Privilege to shield the DOJ’s Fast and Furious records from disclosure. Executive privilege is reserved to “protect” White House records, not the records of federal agencies, which must be made available, subject to specific exceptions, under the FOIA.
The president’s assertion of executive privilege came just hours before the House Oversight and Government Reform Committee voted to hold Attorney General Eric Holder in contempt of Congress for failing to respond to congressional subpoenas for Fast and Furious records. On June 28, 2012, Congress voted 255-67 to hold Holder in contempt. (A number of Democrats joined the vote, while other Democrats, endorsing lawlessness, walked out in protest.) A second vote, 258-95, authorized the pursuit of records through civil litigation in the courts. Moreover, documents uncovered by CBS News seem to indicate that Holder may have perjured himself during congressional testimony, detailing what he knew about Fast and Furious and when.
“It is beyond ironic that the Obama administration has initiated an anti-gun violence push as it seeking to keep secret key documents about its very own Fast and Furious gun walking scandal. Getting beyond the Obama administration’s smokescreen, this lawsuit is about a very simple principle: the public’s right to know the full truth about an egregious political scandal that led to the death of at least one American and countless others in Mexico,” said Judicial Watch President Tom Fitton. “The American people are sick and tired of the Obama administration trying to rewrite FOIA law to protect this president and his appointees. Americans want answers about Fast and Furious killings and lies.”
Judicial Watch separately filed a FOIA lawsuit against the ATF seeking access to records detailing communications between ATF officials and a White House official regarding Fast and Furious.
DOJ Seeks to Stall JW Lawsuit Seeking Access to Fast and Furious Records | Judicial Watch
