Obama court appointee likely to decide contempt battle between Issa, Holder

A fight over President Obama’s use of executive privilege on the documents that led to Attorney General Eric Holder’s contempt charges is increasingly likely to be decided in court.

The way the court decides could drastically limit congressional subpoena powers — or curb the extent to which the president can claim executive privilege.

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For the time being, House Republicans and the Department of Justice (DOJ) are about to launch into court-ordered mediations to reach a settlement. 

On Monday, U.S. District Judge Amy Berman Jackson shot down the House Oversight and Government Reform Committee’s efforts to avoid mediation, a process Republicans warn is almost certain to be fruitless.

Jackson, who was appointed by President Obama and unanimously confirmed by the Senate in 2011, gave the department and the committee until April 24 to reach an agreement. If they fail, the trial will begin, leaving their fate in Jackson’s hands.

The Oversight panel, led by Rep. Darrell Issa (R-Calif.), argued that mediation with a separate federal judge would be futile because of the distance between the two sides.

“He is not motivated to compromise in a manner that will result in the delivery of useful documents to the committee in the foreseeable future [and] ... settlement simply is not possible — at least not at this time,” the committee wrote about Holder in the latest joint status report. “Further efforts along these lines would be a waste of everyone’s time.”

Most fights in the past over executive privilege have been resolved through negotiations by the executive and legislative branches, but Oversight and Justice appear far away from a deal in this case.

The court mediation process is seen as the last attempt at negotiation. One concern for both parties is that the mediator could lay bare a vulnerability in their case during the process, which could drastically hurt them in trial and consequently decrease their leverage in trying to negotiate a final deal beforehand.

This was Obama’s only time using executive privilege. His predecessor, former President George W. Bush, invoked executive privilege six times during his two terms in office

The fight between Holder and Issa resulted in a rare House vote placing the attorney general in contempt last year. The contempt finding led to the civil case, as well as a separate call for criminal charges to be brought against Holder. Justice had said it will not bring the criminal charges, though technically House Republicans could order Holder’s arrest when he is on Capitol grounds.

The contempt charges came after the attorney general refused to give Issa access to certain internal documents having to do with the botched “Fast and Furious” gun-walking operation, which may have led to the killing of a Border Patrol agent.

Issa subpoenaed for the documents, which Obama eventually asserted executive privilege over in a bid to prevent the contempt finding. The House held the Holder vote anyway. 

Now, it is up to the U.S. District Court of D.C. to decide whether the president was right to assert executive privilege or whether Issa’s subpoena should be honored.

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Congress and the White House have both won previous court battles in the past over the assertion of executive privilege. But according to legal scholars and former DOJ attorneys, the current case is unlike any other, leaving many with a theory on how it will play out but few with any firm conviction. Few, except for Issa himself. 

“The committee is confident about the legal merit of its efforts to obtain documents President Obama and the Justice Department have wrongly withheld,” said Frederick Hill, a spokesman for Issa and the panel’s Republicans, in a statement. “The committee intends to fully pursue its legal options.”

Scott Coffina, a former associate counsel to Bush and current partner with D.C. firm Drinker, Biddle & Reath, said the case is extremely important because it could set a new precedent for what information Congress has a right to access.

“There’s a very important prerogative from both branches at stake in a decision like this: the assertion of executive privilege in future cases and Congress’s right to insist on getting full, complete, and accurate information when they’re conducting investigations,” said Coffina.

The civil case goes back to Feb. 4, 2011, when the department told Sen. Chuck Grassley (R-Iowa) that it did everything possible to stop guns from crossing into Mexico. Later that year, in a rare move, the department withdrew the letter for its inaccuracies.

Holder has shown Issa’s panel relevant DOJ documents leading up to the Feb. 4 letter from former Assistant Attorney General Ronald Weich about how it was conceived and why it contained inaccuracies. The documents show that Weich did not intentionally mislead Congress,but that he was communicating the best information he had been given.

But Holder has refused to give the committee any internal communications and documents from the time after the letter was sent, which Issa has subpoenaed.

Issa says these documents are relevant to his investigation because they could shed light on whether anyone in the administration intentionally tried to cover up the misstatements to Congress. Holder and Obama say the documents are not relevant.

Further muddying the waters are comments Holder made in a recent interview with ABC News, which the committee refers to in its joint status report. Holder said he didn’t have respect for the lawmakers who voted to place him in contempt of Congress last year. 

Issa has called the comments “arrogantly dismissive,” and Grassley, who did not vote on the House contempt measure, has called for an apology.

Holder and DOJ say they are optimistic that a deal can be reached through mediation.