United States District Court, District of Columbia
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, UNITED STATES HOUSE OF REPRESENTATIVES, Plaintiff,
LORETTA E. LYNCH, Attorney General of the United States, Defendant.
MEMORANDUM OPINION AND ORDER
AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE
This case concerns a Congressional subpoena for documents from plaintiff, the Committee on Oversight and Government Reform of the United States House of Representatives (“Committee”) to the defendant, the Attorney General of the United States. Before the Court is plaintiff’s motion to compel the production of documents [Dkt. # 103], which the Court will grant in part and deny in part.
The pending motion is styled as a motion to compel, but it seeks the relief sought in the lawsuit itself: an order compelling the production of certain documents responsive to an October 11, 2011 subpoena issued by the Committee to the Attorney General for records related to Operation Fast and Furious. Compl. [Dkt. #1] ¶¶ 4, 7, 8. In particular, the action seeks those records generated after February 4, 2011 that have been withheld on the grounds that they are covered by the deliberative process prong of the executive privilege. Id. ¶ 14.
After the lawsuit was filed, the Department of Justice took the position that this Court did not have - or should decline to exercise - jurisdiction over what the Department characterized as a political dispute between the executive and legislative branches of the government. The defense warned that it would threaten the constitutional balance of powers if the Court endeavored to weigh the Committee’s stated need for the material against the executive’s interest in confidential decision making, or if the Court were to make its own judgment about whether the negotiation and accommodation process to date had been adequate. Mem. in Supp. of Def.’s Mot. to Dismiss [Dkt. # 13-1] at 19-45. Individual Members of Congress also urged the Court to stay its hand and entrust the matter to the time-honored negotiation process. Memorandum Amici Curiae of Reps. Cummings, Conyers, Waxman, Towns & Slaughter in Supp. of Dismissal [Dkt. # 30] (“Mem. Amici Curiae”).
In response to the motion to dismiss, the Committee argued that it was both lawful and prudent for the Court to exercise jurisdiction since the case involved a discrete, narrow question of law:
This type of case - at bottom, a subpoena enforcement case - has been brought in and addressed by the courts in this Circuit many times before . . . . Moreover, this case involves the purely legal question of the scope and application of Executive privilege . . . .
Pl.’s Opp. to Def.’s Mot. to Dismiss [Dkt. # 17] at 6 (emphasis in original).
The Court agreed. Citing United States v. Nixon, 418 U.S. 683 (1974), it ruled that it had not only the authority, but the responsibility, to resolve the conflict.
[T]he Supreme Court held that it was “the province and duty” of the Court “‘to say what the law is’” with respect to the claim of executive privilege that was presented in that case. Id. at 705, quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). “Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government.” Id. at 704. Those principles apply with equal force here. To give the Attorney General the final word would elevate and fortify the executive branch at the expense of the other institutions that are supposed to be its equal, and do more damage to the balance envisioned by the Framers than a judicial ruling on the narrow privilege question posed by the complaint.
Mem. Op. (Sept. 30, 2013) [Dkt. # 52] (“Mem. Op. on Mot. to Dismiss”) at 17-18; see also Id. at 15-16, citing Comm. on the Judiciary v. Miers, 558 F.Supp.2d 53, 84-85 (D.D.C. 2008).
The Committee then moved for summary judgment on the grounds that as a matter of law, the executive branch could not invoke the deliberative process privilege in response to a Congressional subpoena. Pl.’s Mot. for Summ. J. [Dkt. # 61]. In the Committee’s view, since the records did not involve actual communications with the President that would raise separation of powers concerns, they had to be produced. Mem. of P. & A. in Supp. of Pl.’s Mot. for Summ. J. [Dkt. # 61] (“Pl.’s Summ. J. Mem.”). The Court ruled against the Committee on that issue. Order [Dkt. # 81] (“Order on Mot. for Summ. J.”). It determined that there is an important constitutional dimension to the deliberative process aspect of the executive privilege, and that the privilege could be properly invoked in response to a legislative demand. Id. at 2, citing In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997) (“Espy”).
However, the Court also found that defendant’s blanket assertion of the privilege over all records generated after a particular date could not pass muster, because no showing had been made that any of the individual records satisfied the prerequisites for the application of the privilege. Order on Mot. for Summ. J. at 3-4. Defendant was ordered to review the responsive records to determine which, if any, records were both pre-decisional and deliberative and to produce any that were not. Id. at 4-5. Defendant was also ordered to create a detailed list identifying all records that were being withheld on privilege grounds. Id. at 4.
The current motion pending before the Court marks the next stage in these proceedings, as the Committee has moved to compel the production of every single record described in the list, as well as a body of material that defendant did not include in the index. Pl.’s Mot. to Compel (“Mot. to Compel”) [Dkt. # 103] and Mem. of P. & A. in Supp. of Pl.’s Mot. to Compel (“Pl.’s Mem. for Mot. to Compel”) [Dkt. # 103-1]. Fundamentally, the Committee takes the position that not one of the records is deliberative, and that even if some are, the privilege is outweighed in this instance by the Committee’s need for the material. In particular, the Committee seeks a declaration that intra-agency communications about responding to Congressional and media requests for information are not covered by the privilege. Pl.’s Mem. for Mot. to Compel at 26-29. It also argues that the right to invoke any privilege has been vitiated by the Department’s own misconduct. Id. at 32 n.15.
As will be explained in more detail below, the Court rejects the Committee’s articulation of the scope of the privilege. In accordance with other authority from this Circuit, the Court finds that records reflecting the agency’s internal deliberations over how to respond to Congressional and media inquiries fall under the protection of the deliberative process privilege. It also finds that the defendant’s detailed list describes the records being withheld with sufficient detail to support the assertion of the privilege.
But, as both parties recognize, the deliberative process privilege is a qualified privilege that can be overcome by a sufficient showing of need for the material. Espy, 121 F.3d at 737-38.
This need determination is to be made flexibly on a case-by-case, ad hoc basis. “[E]ach time [the deliberative process privilege] is asserted, the district court must undertake a fresh balancing of the competing interests . . . .”
Id., quoting In re Subpoena Served Upon the Comptroller of the Currency, 967 F.2d 630, 634 (D.C. Cir. 1992). Thus, while the determination of whether the executive exceeded his authority in withholding materials began with the sort of pure legal inquiry that undeniably rests with the judiciary, following that process to its conclusion necessarily involves the kind of balancing that may raise separation of powers concerns when the legislature is the other party involved.
In other words, now that that legal ruling that was the stated justification for the invocation of this Court’s jurisdiction has been issued, prudential considerations could weigh against going further and engaging in the balancing of the competing interests. But here, that exercise can be accomplished without the sort of interference in legislative or executive matters that courts should endeavor to avoid, and the Court can decide this case without assessing the relative weight of the interests asserted by the other two co-equal branches of government.
There is no need for the Court to invade the province of the legislature and undertake its own assessment of the legitimacy of the Committee’s investigation, because the Department of Justice has conceded the point: it has repeatedly acknowledged the legitimacy of the investigation. See e.g., Mem. in Supp. of Def.’s Mot. to Dismiss [Dkt. # 13-1] at 2-3 (referring to “Congress’s legitimate oversight interests” and “legitimate investigative concerns”); Mem. in Supp. of Def.’s Mot. for. Summ. J. & in Opp. to Pl.’s Mot. for Summ. J. [Dkt. # 63] (“Def.’s Summ. J. Mem.”) at 7-9; Letter from James M. Cole to Darrell E. Issa (June 20, 2012) [Dkt. # 17-3] (“June 20 Cole Letter”) at 1 (“[T]he Department has provided a significant amount of information to the Committee in an extraordinary effort to accommodate the Committee’s legitimate oversight interests.”); and Tr. of May 15, 2014 Hearing at 72 [Dkt. # 79] (counsel for defendant: “because we had had an inaccurate letter  we believed that it was appropriate to provide them with documents explaining that letter”).
Furthermore, there is no need to balance the need against the impact that the revelation of any record could have on candor in future executive decision making, since any harm that might flow from the public revelation of the deliberations at issue here has already been self-inflicted: the emails and memoranda that are responsive to the subpoena were described in detail in a report by the Department of Justice Inspector General that has already been released to the public. See A Review of ATF’s Operation Fast and Furious and Related Matters (Redacted), Office of the Inspector General Oversight and Review Division, U.S. Dep’t of Justice (Sept. 2012) (“IG Report”), https://oig.justice.gov/reports/2012/s1209.pdf.
Therefore, 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. Since any harm that would flow from the disclosures sought here would be merely incremental, the records must be produced. The Court emphasizes that this ruling is not predicated upon a finding of wrongdoing.
The Committee’s motion also raises issues about the withholding of records on other grounds and whether the subpoena was narrowed by agreement of the parties. Since the Committee was quite clear when it invoked the jurisdiction of this Court that it was simply asking for a ruling on the discrete question of law that has now been decided, the Court will decline to interpose itself in the negotiations between the parties on those other issues or to rule on questions that were not posed by the complaint. See Pl.’s Opp. to Mot. to Dismiss [Dkt. # 17] at 43-44 (“Once the limits and application of the deliberative process privilege in the context of the Holder Subpoena have been declared, the parties will know how to proceed.”). The Committee has assured the Court that in the past, it has been willing and able to accommodate legitimate concerns about revealing law enforcement, attorney-client privileged, or purely private information and that it will be prepared to do so in the future. See Pl.’s Mem. for Mot. to Compel at 22; Tr. of July 30, 2015 Hearing [Dkt. # 109] at 27-28. So now that the issues have been substantially narrowed, all that is left to accomplish is the execution of a familiar set of steps applying a familiar set of principles. Given that backdrop, notwithstanding the Committee’s insistence that the time for negotiation about these particular records has passed, the Court encourages the parties to start with a fresh slate and resolve the few remaining issues with flexibility and respect.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On October 11, 2011, the Committee issued a subpoena to the Attorney General calling for documents related to its investigation of a law enforcement initiative known as Operation Fast and Furious. The operation, launched by the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) and the U.S. Attorney’s office in Phoenix, Arizona in 2009, sought to address the suspected illegal flow of firearms from the United States to drug cartels in Mexico. As part of the investigation, law enforcement officers allowed straw purchasers to buy firearms illegally in the United States and take them into Mexico without being apprehended - deliberately permitting the guns to “walk” in order to track them to their destination. But after a U.S. law enforcement agent was killed in December 2010 by a bullet fired from one of these guns, the ATF’s tactic came under intense scrutiny.
Congress began inquiring into Operation Fast and Furious in early 2011, and on February 4, 2011, Assistant Attorney General Ronald Weich sent a letter to Senator Charles E. Grassley, Ranking Minority Member of the Committee on the Judiciary, denying that the tactic had been utilized or that straw purchasers were permitted to transport firearms into Mexico without being interdicted. Letter from Ronald Weich to Charles E. Grassley (Feb. 4, 2011) [Dkt. # 17-1]. Ten months later, though, on December 2, 2011, the Deputy Attorney General officially retracted the earlier denial and confirmed that in fact, federal investigators had permitted the weapons to leave the country and enter Mexico. Letter from James M. Cole to Darrell E. Issa (Dec. 2, 2011) [Dkt. # 17-2]. The Committee then expanded its investigation to look into the circumstances behind the Justice Department’s initial inaccurate assurances, as well as when and how the Department determined that the February 4 letter was incorrect and why it took as long as it did for Congress to be informed. As part of that effort, the Committee issued the October 11, 2011 subpoena. The Department produced a considerable volume of material that was responsive to the subpoena, but it withheld all records created on or after February 4, 2011.
This response was not satisfactory to the Committee, and the parties engaged in several months of negotiations concerning the post-February 4 documents. Ultimately, the Committee threatened to hold the Attorney General in contempt of Congress for withholding the records. The Committee scheduled a hearing on the contempt issue for June 20, 2012, and as the date approached, additional letters were exchanged in an attempt to avert the vote. Letter from James M. Cole to Darrell E. Issa (June 11, 2012) [Dkt. # 13-5]; Letter from Darrell E. Issa to Eric H. Holder, Jr. (June 13, 2012) [Dkt. # 63-8] (“June 13 Issa Letter”); Letter from Eric H. Holder, Jr. to Darrell E. Issa (June 14, 2012) [Dkt. # 13-4] (“June 14 Holder Letter”); Letter from James M. Cole to Darrell E. Issa [Dkt. # 13-6] (June 19, 2012) (“June 19 Cole Letter”). This effort did not bear fruit. On June 20, 2012, the Deputy Attorney General informed the Committee that the President had asserted executive privilege over the documents in dispute - internal documents related to the Department’s response to Congress - on the grounds that their disclosure would reveal the agency’s deliberative processes. June 20 Cole Letter [Dkt. # 17-3]. His letter lies at the heart of this action.
On August 13, 2012, the Committee filed this lawsuit to enforce the October 11, 2011 subpoena, Compl. [Dkt. # 1], and the complaint was amended in January of 2013 when the incoming 113th Congress reissued the subpoena. Am. Compl. [Dkt. # 35]. On September 30, 2013, the Court denied defendant’s motion to dismiss for lack of subject matter jurisdiction, Order [Dkt. # 51], and the parties subsequently filed cross-motions for summary judgment. The Committee sought judgment on the grounds that the Attorney General could not invoke executive privilege to shield records that did not involve direct communications with the President, Pl.’s Summ. J. Mem. [Dkt. # 61], and the Department took the position that the entire set of records was covered by the deliberative process prong of the executive privilege. Def.’s Summ. J. Mem. [Dkt. # 63].
On August 20, 2014, the Court denied both motions without prejudice, holding that the executive branch could properly invoke the deliberative process privilege in response to a legislative demand, but that it could not do so unless the prerequisites for the application of the privilege had been established. Order on Mot. for Summ. J. at 3.
The Court ordered the defense to review each of the withheld documents and to produce all that were not both predecisional and deliberative. Id. at 4. With respect to those documents for which a claim of privilege was still being asserted, the Court ordered the Department to generate a detailed list identifying “the author and recipient(s) and the general subject matter of the record being withheld, [and] the basis for the assertion of the privilege; in particular, . . . the decision that the deliberations contained in the document precede.” Id.
On November 4, 2014, the Department produced 10, 104 records that had been previously withheld - totaling 64, 404 pages. It also provided the detailed list of the records it deemed to be privileged in whole or in part after the individualized review. Pl.’s Notice of Disputed Claims & Other Issues [Dkt. # 98] at 2-3. On December 10, 2014, it produced a revised list, which it also provided to the Court. Not. of Filing of Privilege List [Dkt. # 100]. Defendant provided a third revised list to plaintiff on February 19, 2015, which was not filed with the Court. Pl.’s Reply to Def.’s Opp. to Pl.’s Mot. to Compel [Dkt. # 106] (“Pl.’s Reply”) at 1. Finally, on May 29, 2015, the Department notified the Court that it had re-reviewed certain material withheld from the Committee, and it transmitted a final revised detailed list to the Committee and the Court. Def.’s Not. of Subsequent Developments. [Dkt. # 107].
Based on the Court’s review of defendant’s final revised list, which had a total of 17, 835 entries, it appears that 4082 of the documents listed are duplicates wholly contained within other documents on the list, leaving 13, 753 unique documents. Of those, approximately 3307 were released in full to plaintiff. The remaining 10, 446 documents were withheld in whole or part:
Basis for Withholding
Number of Documents
Deliberative process privilege
Law enforcement sensitive
No reason provided
On January 16, 2015, plaintiff filed the instant motion to compel production of all the documents on the revised detailed list,  and that motion has been fully briefed. Pl.’s Mot. to Compel [Dkt. # 103] and Pl.’s Mem. for Mot. to Compel [Dkt. # 103-1]; Def.’s Mem. in Opp. to Pl.’s Mot. to Compel [Dkt. # ...