This column by ACRU Senior Legal Analyst Ken Klukowski was published May 15, 2014 on Breitbart.com.
U.S. District Judge Amy Berman Jackson was openly irritated both with Attorney General Eric Holder and with the U.S. House of Representatives over whether executive privilege allows Holder to withhold documents on Operation Fast and Furious. But she also signaled she would rule against Holder in part, making it likely that Congress — and the public — could learn the truth about a gun-running scandal that ended with a murdered federal agent.
Berman began today’s hearing in Washington, D.C.’s federal district court with an opening statement about this case “concerning the suspected illegal flow of firearms from the United States to Mexican drug cartels.” She said that the “risks and flaws” of the Obama administration’s program were “tragically realized” when U.S. Border Patrol Agent Brian Terry was murdered with a firearm that the administration let flow to the cartels as part of this program.
But she emphasized that the May 15 hearing was not about those issues, and instead narrowly focused on whether President Barack Obama could assert executive privilege to protect Holder’s refusal to hand over certain documents to Congress. Those documents concerned why Holder misinformed Congress on Feb. 4, 2011, claiming that the Department of Justice (DOJ) never allowed firearms to make it into Mexico.
On Oct. 11, 2011, Congress subpoenaed all the relevant documents that would explain why Congress was misinformed, including whether the misinformation was deliberate deception.
On June 20, 2012, DOJ informed Congress that Obama asserted executive privilege over those documents, saying they would reveal the deliberative process at DOJ and threaten the constitutional balance of power. Therefore Holder would not provide them. Holder became the first sitting attorney general in American history to be held in contempt of Congress.
Berman harshly criticized both sides, saying, “Reading the briefs were somewhat distressing.” But the Obama-appointed judge was especially critical of the U.S. House for its filings, saying the “[Government Oversight] Committee’s briefs are exactly what I was assured they would not be.” According to her, they were “accusatory” and “seemed more directed at the press than to me.”
Breitbart News has previously explained the different forms of executive privilege relevant to this lawsuit. Moving on the arguments over those forms, she indicated she will rule against the House’s argument that executive privilege does not apply at all to these documents.
But she also signaled she will rule against DOJ’s argument that Holder can withhold everything after Feb. 4, 2011. “Is there any case anywhere that talks about that?” she asked. DOJ admitted there was none, and that they were asking the court to recognize a new constitutional protection for the executive branch that the federal courts had never before upheld.
As Berman saw it, Holder admitted he misinformed Congress. The House wants to know why. She balked at DOJ’s argument that Holder can withhold everything explaining how that came to be.
Jackson said she is likely to issue an opinion holding that there is a form of executive privilege relevant here that covers “intra-branch deliberations” and that it has “some constitutional underpinnings,” but it is much weaker than it would be if Obama were personally involved. She also signaled that under the ruling she would devise, DOJ would have to persuade her on each document as to why she should allow Holder to withhold it from Congress.
She suggested that under Supreme Court and federal appellate precedent, she would likely only allow documents to be withheld if they were both (1) leading up to an executive decision and (2) contained the deliberations back-and-forth about what the administration should do in carrying out its duties.
A ruling is expected in the next few months.