Published November 27, 2012
Justice Department lawyers and House Republicans leading an investigation into the federal gun-tracking program known as Operation Fast and Furious say they will meet "in the very near future" to try to reach a settlement over documents the Obama administration is refusing to release.
The sides have been battling for months. In a lawsuit filed in August, the attorneys representing the Republican lawmakers said Attorney General Eric Holder's "contumacious refusal" to comply with a House subpoena has prevented congressional investigators from determining whether the Justice Department intentionally tried to obstruct their investigation.
The documents at the center of the lawsuit are mostly internal Justice Department emails after Feb. 4, 2011 – the point when agency officials realized they would have to retract a letter to Congress that denied Alcohol, Tobacco, Firearms and Explosives agents connected to Operation Fast and Furious let guns fall into the hands of suspected criminals.
Some of the documents recently became a matter of public record, when the Justice Department's Inspector General released his own report on Fast and Furious.
A Justice Department attorney said Tuesday during a hearing in Washington "a lot has happened" since Republicans first filed the lawsuit.
The federal judge presiding over the case, U.S. District Judge Amy Jackson, seemed to agree, saying the scope of the case has been narrowed due to "some overlap” between the documents at issue in the lawsuit and some that have now been made public by the Justice Department.
Attorney Kerry Kircher, representing the House Oversight and Government Reform Committee, told Jackson that his team and lawyers from the Justice Department would be meeting "in the very near future" to discuss a settlement in the case.
"We are prepared to sit down and discuss the possibility of reaching an amicable resolution," he said, adding that no date has been set.
Jackson called such settlement discussion the "most productive" action to take right now.
The pending meeting disclosed Tuesday was not entirely unexpected because both sides are encouraged by law to attempt to negotiate a settlement before a case proceeds to trial.
Still, a Justice Department official has insisted the documents at issue "show no intention or attempt to conceal information or mislead” Congress.
In an email from early 2011, described to Fox News, Holder told subordinates: "We need answers on this. Not defensive BS. Real answers."
But the lawsuit states the documents will help the committee and the American public understand how and why the agency provided false information to Congress and otherwise obstructed the congressional investigation.
In August, House Republicans -- and some Democrats -- voted to hold Holder in criminal and civil contempt of Congress for failing to give congressional investigators documents in response to a subpoena last year. Meetings in the run-up to the vote failed to reach a compromise, after President Obama asserted executive privilege over the documents.
The U.S. Attorney in Washington has said he would not move ahead with criminal proceedings against Holder, leaving the civil route Republicans' only option.
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.
Democrats dismissed the contempt vote and the lawsuit as pre-election politics.
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, and 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.
The subpoena at issue in Tuesday's hearing is valid only as long as the Congress that issued it is. So the subpoena will no longer be in effect on Jan. 3, 2013, when the new Congress takes over.
A Justice Department attorney said that could make the entire case moot. The House committee could issue a new subpoena.
As of now, a hearing on the Justice Department's motion to dismiss the case is set for a week after the subpoena expires.
The Justice Department Inspector General’s report put most of the blame for Fast and Furious on ATF officials and federal prosecutors in Arizona, saying top Justice Department officials in Washington were not given “sufficient information … to alert them to the serious problems.”
The report also states agency officials in Washington “relied on (inaccurate) information provided by senior component officials” in ATF and in Arizona to draft the Feb. 4, 2011, letter sent to lawmakers.