Amy Berman Jackson. (Photo: Diego M. Radzinschi/NLJ)
The U.S. Department of Justice must turn over to Congress internal records about how the department responded to a congressional inquiry into the botched gun-walking program known as Operation Fast and Furious.
U.S. District Judge Amy Berman Jackson in Washington ruled on Tuesday that despite DOJ’s argument that the documents that House Republicans sued for were privileged, that privilege “must yield.”
“The court finds, under the unique and limited circumstances of this case, that the qualified privilege must yield, given the executive’s acknowledgment of the legitimacy of the investigation, and the fact that the department itself has already publicly revealed the sum and substance of the very material it is now seeking to withhold,” Jackson wrote.
Operation Fast and Furious—a now-defunct program in which federal agents allowed straw buyers to purchase guns and transport them into Mexico so they could be tracked—was a source of friction between former U.S. Attorney General Eric Holder Jr., now a partner at Covington & Burling, and Republicans.
The Republican-led House Committee on Oversight and Government Reform sued the Justice Department in 2012 to force officials to comply with a subpoena for documents about how the department handled congressional inquiries into the operation, which was linked to the death of border patrol agent Brian Terry.
In October 2013, Jackson rejected the Obama administration’s contention that the court lacked jurisdiction over the interbranch dispute. The judge noted in her opinion Tuesday that she found in 2013 that she “had not only the authority, but the responsibility, to resolve the conflict.”
Records that reflected DOJ’s “internal deliberations” about how to respond to inquiries about Operation Fast and Furious from Congress and the media were protected by the deliberative-process privilege, which shields certain records of communications between executive branch officials, Jackson wrote in Tuesday’s opinion.
However, the judge said, because DOJ conceded the legitimacy of Congress’ investigation and the contents of the disputed records had already largely been made public in an inspector general report, the scales tipped in favor of ordering disclosure.
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. 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.
Jackson ordered the Justice Department to turn over documents to the committee by Feb. 2.
Oversight Committee Chairman Jason Chaffetz, R-Utah, said in a statement that Jackson’s ruling “will help us advance the Fast & Furious investigation into this administration’s gun running operation. After allowing guns to walk, the administration’s attempt to hide behind executive privilege only adds insult to injury.”
A Justice Department spokeswoman said in an email that officials are reviewing the decision.
Jackson’s ruling in House Oversight Committee v. Lynch is posted in full below.
Updated with comment from a Justice Department spokeswoman and Jason Chaffetz.