Yesterday, Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia denied the federal government’s motion to dismiss a suit filed by the House Committee on Oversight and Government Reform to enforce a subpoena for documents related to the “Fast and Furious” scandal. The Justice Department has refused to turn over relevant material, citing Executive Privilege. Judge Jackson rejected DoJ’s position that this sort of “dispute between the legislative and executive branches must be resolved through negotiation and accommodation” and “the judiciary may not, or at least, should not, get involved.”
From Judge Jackson’s opinion in Committee on Oversight and Government Reform v. Holder:
The fact that this case arises out of a dispute between two branches of government does not make it non-justiciable; Supreme Court precedent establishes that the third branch has an equally fundamental role to play, and that judges not only may, but sometimes must, exercise their responsibility to interpret the Constitution and determine whether another branch has exceeded its power. In the Court’s view, endorsing the proposition that the executive may assert an unreviewable right to withhold materials from the legislature would offend the Constitution more than undertaking to resolve the specific dispute that has been presented here. After all, the Constitution contemplates not only a separation, but a balance, of powers. . . .
The Court is mindful that “federal courts may exercise power only in the last resort . . . and only when adjudication is consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process.” Allen v. Wright, 468 U.S 737, 752 (1984) (internal citations and quotation marks omitted). But here, the narrow legal question posed by the complaint is precisely the sort of crisp legal issue that courts
are well-equipped to address and routinely called upon to resolve.
The defendant warns that an assumption of jurisdiction in this case would mark an unprecedented expansion of the role of an Article III court. But there has been binding precedent to the contrary in this Circuit for more than thirty-five years. In United States v. AT&T, 551 F.2d 384, 390 (D.C. Cir. 1976), the Court of Appeals declared: “the mere fact that there is a conflict between the legislative and executive branches over a congressional subpoena does not preclude judicial resolution of the conflict.” And five years ago, another court in this District carefully considered and rejected the same arguments being advanced by the Attorney General here. In a case involving a different Congress and a different President, Committee on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008), the court concluded in a persuasive opinion that it had jurisdiction to resolve a similar clash between the branches.
For the reasons set forth in Miers, as well as those detailed below, the Court finds that neither the Constitution nor prudential considerations require judges to stand on the sidelines. There is federal subject matter jurisdiction over this complaint, and it alleges a cause of action that plaintiff has standing to bring. The Court cautions that this opinion should not be taken as any indication of its views on the merits of the dispute, which have yet to be briefed, argued, or considered in any way. The defendant’s pleadings stress the importance of the privilege and the role it plays encouraging candor in executive branch deliberations and decision making. But at this stage of the proceedings, the sole question before the Court is whether it can and should exercise jurisdiction to hear the case – not whether the documents are covered by the privilege. This opinion does not grapple with the scope of the President’s privilege: it simply rejects the notion that it is an unreviewable privilege when asserted in response to a legislative demand.
It’s interesting to note how much Judge Jackson stresses the precedent set by the House Judiciary Committee’s efforts to subpoena documents from the Bush Administration about the decision to replace multiple U.S. Attorneys en masse. It’s also interesting to note how some folks’ positions on the scope of Executive Privilege tend to expand or contract depending upon the party holding the White House. Politico‘s Josh Gerstein reports more on the decision here.