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Committee on Oversight and Government Reform v. Sessions

United States District Court, District of Columbia

October 22, 2018

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, UNITED STATES HOUSE OF REPRESENTATIVES, Plaintiff,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United States, Defendant.

          MEMORANDUM OPINION AND ORDER

          AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE.

         The Court entered judgment in this case on February 8, 2016, and the case is now pending before the United States Court of Appeals for the District of Columbia Circuit. The parties have arrived at a negotiated solution, and they have filed a joint motion for an indicative ruling pursuant to Federal Rule of Civil Procedure 62.1. They ask the Court to inform them now whether it would agree to vacate its orders of August 20, 2014 and January 19, 2016[1] and dismiss the case with prejudice if the matter were remanded in accordance with the terms of their conditional settlement agreement. Joint Mot. for Indicative Ruling [Dkt. # 130] (“Joint Mot.”).

         The motion comes almost two years after the Court ordered the defendant, the Attorney General of the United States, to respond to a Congressional subpoena issued by plaintiff, the Committee on Oversight and Government Reform of the U.S. House of Representatives, for Department of Justice documents concerning a law enforcement effort known as Operation Fast and Furious. The parties have executed a conditional settlement agreement providing that the Department will search for and produce certain documents from its investigation of the operation to the Committee, subject to this Court's vacating the Orders and dismissing the case under Federal Rule of Civil Procedure 60(b). Joint Suppl. Br. in Supp. of Mot. for Indicative Ruling [Dkt. # 135] (“Joint Suppl.”) at 3-4, citing Conditional Settlement Agreement, Ex. A to Joint Mot. [Dkt. # 130-1] ¶¶ 1, 5-8 (stating the settlement is only effective “upon vacatur of the District Court's orders of August 20, 2014 and January 19, 2016”).

         Because neither the balance of the equities nor the public interest weigh in favor of vacatur, the Court will deny the parties' motion.

         FACTUAL AND PROCEDURAL HISTORY

         On October 11, 2011, the Committee issued a subpoena to the Attorney General[2] for documents related to the Department's investigation into Operation Fast and Furious. The operation, run by the Bureau of Alcohol, Tobacco, and Firearms and the U.S. Attorney's Office in Phoenix, Arizona, sought to track the suspected flow of firearms from the United States to drug cartels in Mexico. During the course of the investigation, agents permitted straw purchasers to buy firearms illegally in the United States, and then let the purchasers “walk” the firearms into Mexico without being apprehended. Am. Compl. [Dkt. # 35] ¶ 1. The tactic was designed to track the guns to their ultimate destination and reveal any nexus between the leaders of Mexican crime syndicates and the individuals who purchased the firearms. Id. But the initiative came under intense scrutiny when a U.S. law enforcement agent was killed in December 2010 with one of the guns that was part of the operation. Id. ¶ 2. Members of Congress began inquiring into the matter, and in a letter dated February 4, 2011, the Department of Justice firmly denied that ATF ever knowingly failed to interdict weapons that had been purchased illegally. Id. As more facts came to light, though, the Department acknowledged that law enforcement agents had in fact permitted some guns to walk during the course of the Phoenix operation. Id. ¶ 3. The Committee then shifted its focus to uncovering why the Department had provided it with incorrect information at the outset. Id. ¶ 4.

         On October 11, 2011, the Committee issued the subpoena to the Attorney General that lies at the heart of this lawsuit. See Am. Compl. ¶ 8. While a large volume of materials was produced, the Department informed the Committee on June 20, 2012 that the President had asserted executive privilege over all relevant documents dated after February 4, 2011. Id. ¶ 14. On August 13, 2012, the Committee filed this action to compel the production of those records, which had been withheld on the grounds that they were covered by the deliberative process prong of the executive privilege. See Compl. [Dkt. #1].

         The case produced a number of rulings. After the lawsuit was filed, the Department of Justice moved to dismiss it. It 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 Attorney General 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.

         The Committee opposed the motion to dismiss. It 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.

Comm. on Oversight & Gov't Reform, U.S. House of Representatives v. Holder, 979 F.Supp.2d 1, 11-12 (D.D.C. 2013); see also Id. at 10-11, citing Comm. on the Judiciary v. Miers, 558 F.Supp.2d 53, 84-85 (D.D.C. 2008).

         The parties then filed cross-motions for summary judgment. See Pl.'s Mot. for Summ. J. [Dkt. # 61]; Def.'s Mot. for Summ. J. [Dkt. # 63]. The Committee contended 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, and they did not raise national security concerns, they had to be produced. Mem. of P. & A. in Supp. of Pl.'s Mot. for Summ. J. [Dkt. # 61]. On August 20, 2014, in the first of the two orders at issue in the pending motion, the Court ruled against the Committee on that issue. Holder, 2014 WL 12662665. It determined that there is a 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 *1, citing In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997) (“Espy”).

         However, the Court also found that the Attorney General's blanket assertion of the privilege over all records generated after a particular date could not stand, because no showing had been made that any of the individual records satisfied the legal prerequisites for the application of the privilege. Holder, 2014 WL 12662665, at *2. The Department was ordered to review the responsive records to identify those records that were both pre-decisional and deliberative and to produce any that were not. Id. at *2. It was also ordered to create a detailed list identifying all records that were being withheld on privilege grounds. Id.

         As the Committee acknowledged in a notice filed with the Court, the Department complied with the August 2014 Order. See Comm.'s Notice of Disputed Claims and Other Issues [Dkt. # 98] (reporting that on November 4, 2014, the Department produced 10, 104 documents, or 64, 404 pages, and it produced a list with 14, 281 entries for documents being withheld on privilege grounds). But the parties disagreed about whether the bulk of the records on the list - those memorializing internal agency discussions about communications with Congress or with the media - could be covered by the privilege. See Id. at 2, 11.

         The Committee then moved to compel the production of every 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 [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]. It took the position that not one of the records was deliberative, and that even if some were, the interests advanced by the privilege were outweighed by the Committee's need for the material. The Committee asked the Court to hold 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 argued that the right to invoke any privilege had been vitiated by the Department's own misconduct. Id. at 32 n.15.

         In the second order at issue here, the Court rejected the Committee's articulation of the scope of the privilege. Lynch, 156 F.Supp.3d at 105. Based upon authority from this Circuit, it found that records containing the agency's internal deliberations over how to respond to Congressional and media inquiries were entitled to protection under the deliberative process privilege. Id. But the Court also acknowledged, citing Espy, 121 F.3d at 737-38, that the privilege is a qualified one that can be overcome by a sufficient showing of need for the material. Id. Ultimately, though, the Court concluded that there was no need to balance the Committee's need for the records against the impact their disclosure could have on candor in future executive decision making because the Department had already disclosed the records itself. See Id. at 105-06, citing U.S. Dep't of Justice, Office of the Inspector Gen. Oversight and Review Div., A Review of ATF's Operation Fast and Furious and Related Matters (Redacted) (Sept. 2012), https://oig.justice.gov/ reports/2012/s1209.pdf.

         The Court ruled that the qualified privilege must yield, given the executive's acknowledgment of the legitimacy of the investigation, and the fact that the Department itself had already publicly revealed the sum and substance of the very material it was seeking to withhold. Id. at 106. Since any harm that would flow from the disclosure in response to the subpoena would be merely incremental, the Court ordered on January 19, 2016 that the records had to be produced. Id.[3] Thereafter, the parties informed the Court that its orders had resolved all of the issues in the case and that a final order should issue. See Def.'s Notice Regarding Entry of Final J. [Dkt. # 120] (“Defendant agrees that the Court's Order resolves all of the outstanding issues in the case, and therefore entry of final judgment is appropriate at this time.”); Pl.'s Not. of Compliance with Court's Feb. 1, 2016 Min. Order [Dkt. # 121] (submitting proposed Final Judgment); Final Judgment [Dkt. # 124].

         Notwithstanding the fact that it had prevailed in its effort to enforce compliance with the subpoena, the Committee filed a Notice of Appeal on April 8, 2016. Notice of Appeal [Dkt # 125]; see also Notice of Appeal [Doc. # 1609215], Comm. on Oversight & Gov't Reform, U.S. House of Representatives v. Sessions, No. 16-5078 (D.C. Cir. Apr. 18, 2016). While the Notice of Appeal covered “all aspects” of the Court's Final Judgment “that are adverse to the Committee, including, but not limited to, from the Order of August 20, 2014 (ECF No. 81); the Order of September 9, 2014 (ECF No. 88); and the Memorandum Opinion and Order of January 19, 2016 (ECF No. 117), ” id. at 2, the brief filed in the D.C. Circuit was more narrowly focused.

         The Committee challenged the ruling that the deliberative process privilege can be invoked by the executive in Congressional investigations, and it objected to the Court's decision to decline to address other issues: the Department's failure to produce what the Committee referred to as the “Post-February 4 Subset” of documents, and the withholding or redaction of records on grounds other than the deliberative process privilege. Br. for Appellant [Doc. #1639836] at 14-61, Sessions, No. 16-5078 (D.C. Cir. Oct. 6, 2016).

         In response, the Department argued that the case that had been appealed was moot: the complaint sought an order compelling the Department to produce documents that had been withheld as deliberative, the order had been issued by this Court, and - of importance to this motion - the documents had already been produced. Br. for Appellee [Doc. # 1651995] at 10-11, Sessions, No. 16-5078 (D.C. Cir. Dec. 20, 2016) (“[T]he district court ordered the Department to produce all materials withheld on deliberative process grounds, and the Department has complied in full.”). The Department added that it had also provided the Committee in camera access to disputed non-deliberative materials unrelated to the Committee's suit “with very minor exceptions.” Id. at 11. It urged the Court of Appeals to refrain from addressing any other aspects of the Committee's appeal, and it took the position that the case did not include the “post-February 4 subset” of documents. Id. at 17-24. In the event the Circuit decided to hear the ...


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