United States District Court, District of Columbia
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, UNITED STATES HOUSE OF REPRESENTATIVES, Plaintiff,
JEFFERSON B. SESSIONS III, Attorney General of the United States, Defendant.
MEMORANDUM OPINION AND ORDER
BERMAN JACKSON UNITED STATES DISTRICT JUDGE.
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 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
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”).
neither the balance of the equities nor the public interest
weigh in favor of vacatur, the Court will deny the
AND PROCEDURAL HISTORY
October 11, 2011, the Committee issued a subpoena to the
Attorney General 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.
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].
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.
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 . . . .
Opp. to Def.'s Mot. to Dismiss [Dkt. # 17] at 6 (emphasis
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).
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)
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.
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.
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.
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/
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. 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].
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.
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).
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 ...