The Justice Department filed court papers late Monday seeking to dismiss a lawsuit from the House Oversight Committee that would force Attorney General Eric Holder to turn over documents related to the Fast and Furious gun-tracking operation.
In their legal brief, DOJ lawyers assert that federal courts cannot intervene when the White House moves not to comply with a congressional branch subpoena by asserting executive privilege, as President Obama did in this case.
The Justice Department motion says that the dispute should be settled by the two branches in question and not in the courts.
The House lawsuit was filed in mid-August by Oversight Committee Chairman Darrell Issa (R-Calif.) as part of his probe into a botched ATF operation, which sought to track gun sales to straw purchasers for Mexican drug gangs. Two of the guns were later found at the murder scene of a Border Patrol agent in Arizona.
GOP lawmakers have questioned when administration officials first learned about the operation’s controversial “gun walking” tactics that allowed for known criminals to disappear with firearms, after the ATF had approved their sale.
In 2011, the DOJ sent an initial letter to Congress, stating that at all times it makes every attempt possible to stop weapons from illegally crossing over the border into Mexico. That letter was rescinded nearly 10 months later.
Issa’s lawsuit and contempt resolution against Holder are focused on obtaining internal DOJ documents that pertain to the DOJ’s decision to withdraw that letter, in an attempt to determine whether the agency intentionally lied to Congress and then tried to cover it up.
The DOJ has delivered more than 8,000 pages of documents in response to other requests from Issa about the operation, but Obama asserted executive privilege over the subset pertaining to Issa’s subpoena for the internal communications.
In June, the Republican House overwhelmingly passed resolutions holding the attorney general in contempt of Congress for not complying with the latest subpoena to provide additional documents.
Issa subsequently filed a lawsuit to force Holder to turn over those documents after the Justice Department said it would not prosecute the attorney general over the contempt charge.
A lengthy DOJ inspector general (IG) report on the overarching Fast and Furious operation, and agency officials’ responsibility, received access to more than 100,000 documents over the course of its 18-month investigation. Issa has complained that he has not received one-tenth of those documents.
Democrats have slammed the lawsuit, calling it a waste of taxpayer dollars and an exercise in political theater. Holder and other senior Justice officials have testified before Congress that they were unaware of the controversial tactics being used in the gun-tracking program and moved quickly to stop it once they were informed of the operation.
The IG report also determined that Holder did not know about the tactics and cited several senior DOJ officials as being responsible. Most of those officials have either resigned or retired in the nearly two years since the operation became public.
This story was posted at 7:13 a.m. and has been updated.