Published August 13, 2012
Republican lawmakers leading a congressional investigation into Operation Fast and Furious have filed a lawsuit in federal court urging a judge to compel the Justice Department to turn over documents related to the botched gun-running probe.
In the lawsuit, lawyers representing House Republicans said Attorney General Eric Holder's "intransigency" and "contumacious refusal" to comply with a House subpoena have prevented congressional investigators from determining whether the Justice Department intentionally tried to obstruct their investigation.
After President Obama asserted executive privilege over the documents nearly two months ago, the full House, mostly along party lines, held Holder in criminal and civil contempt of Congress. But with a Holder ally as the gatekeeper to criminal proceedings in Washington, the criminal contempt citation was virtually dead on arrival. So now Republicans are hoping a judge will enforce the civil contempt citation.
The documents at the center of Monday's lawsuit are mostly composed of internal Justice Department emails after Feb. 4, 2011, when department officials realized they would have to retract a letter to Congress that denied Alcohol, Tobacco, Firearms and Explosives agents ever let guns fall into the hands of suspected criminals.
A Justice Department official has insisted the documents at issue "show no intention or attempt to conceal information or mislead (Congress)." In one email from early 2011, described to Fox News, Holder told subordinates: "We need answers on this. Not defensive BS. Real answers."
But the lawsuit filed Monday says those documents "would enable the Committee (and the American people) to understand how and why the Department provided false information to Congress and otherwise obstructed" the congressional investigation.
The "principal legal issue" is whether the Justice Department can withhold documents under executive privilege when "there has been no suggestion that the documents at issue implicate or otherwise involve any advice to the President" or otherwise involve "core constitutional functions of the President," according to the 41-page lawsuit, filed on behalf of Rep. Darrell Issa, R-Calif., chairman of the House Oversight and Government Reform Committee.
The lawsuit says Holder's "conception of the reach of 'Executive privilege'" would "cripple congressional oversight of Executive branch agencies" altogether. It's unclear whether the law is on the Republicans' side -- something the judge in the U.S. District Court for the District of Columbia will have to determine.
The Justice Department, meanwhile, believes it is acting well within the law, insisting it has provided Congress with sufficient information and that Republicans have "distorted the facts, ignored testimony and flung inaccurate accusations at the Attorney General."
"(T)his Attorney General put a stop to the misguided tactics, called for an investigation of this flawed operation and instituted reforms to prevent this from happening again," a Justice Department spokeswoman said after the contempt vote in June.
Fast and Furious was launched in Arizona in late 2009 by ATF, with help from the U.S. attorney's office there. The operation's targets bought nearly 2,000 weapons over several months. But for reasons that are still in dispute, many of them ended up at crime scenes in Mexico and the United States, including the December 2010 murder of Border Patrol Agent Brian Terry.
After the lawsuit was filed Monday, House Speaker John Boehner, R-Ohio, said the Justice Department "has left the House no choice but to take legal action."
But the ranking member on the House Oversight and Government Reform Committee, Rep. Elijah Cummings, D-Md., called it all politics, saying it "seems clear that House Republican leaders do not want to resolve the contempt issue and prefer to generate unnecessary conflict with the Administration as the election nears."
Holder has echoed that statement, saying Issa and others have "chosen to put politics over the public safety."
A report by the Justice Department's inspector general looking at Fast and Furious is expected within weeks.