By Jordy Yager - 04/24/13 07:43 PM EDT
Lawyers for the Justice Department and the House Oversight Committee sparred in court Wednesday over whether a federal judge has standing to resolve their dispute over documents that President Obama is withholding from Congress.
Rep. Darrell Issa (R-Calif.) and Attorney General Eric HolderEric H. HolderEric Holder to headline fundraiser for Clinton The Hill's 12:30 Report The Hill's 12:30 Report MORE have been locked in contentious negotiations for the better part of a year over a set of internal DOJ documents relating to the agency’s handling of a botched gun tracking operation.
Nearly eight months later, the court has yet to resolve whether it even has the right to hear the case.
The court’s decision could dramatically limit the subpoena powers of Congress, or curb the extent to which a president can claim executive privilege.
On Wednesday, U.S. District Judge Amy Berman Jackson expressed frustration that the two sides had been unable to reach an agreement after spending the last month in mediation.
“I’m not going to get into who is responsible for the impasse,” said Jackson, who was appointed to the bench by Obama. “But wouldn’t you have worked this out already if you could?”
Jackson grilled the lawyers for an hour-and-a-half on whether there were adequate reasons for her court to hear the case or dismiss it altogether.
The DOJ’s lawyers have been arguing for the court to stay out of the dispute, saying that, with more time, they can work out their differences. But Issa’s lawyers contend that the DOJ isn’t budging an inch during negotiations and that it needs to the court to step in.
Deputy Assistant Attorney General Ian Gershengorn argued that Jackson would be setting a bad precedent if she moved to proceed with the case. Gershengorn said that would be a signal to Congress that it can take oversight disputes with the White House straight to the courts.
But Kerry Kircher, the general counsel for the House, said it is imperative for the court to settle the matter, because if it did not, it would also be setting a bad precedent. The judicial branch would in effect be saying that there are no repercussions if the executive branch declines to comply with a congressional subpoena, argued Kircher.
The documents at the heart of the case are believed to detail how the DOJ dealt with the fallout of Operation Fast and Furious, which oversaw the sale of about 2,000 guns to criminals working with Mexican drug cartels. Many of the weapons were not tracked and two were found at the murder scene of Border Patrol Agent Brian Terry in 2010.
Issa’s Oversight panel investigated the failed operation and the DOJ’s involvement for nearly 18 months in the last Congress, in what was a highly charged political debate over whether Holder should be held accountable. A lengthy inspector general report released last year found that Holder had no knowledge of the operation, but more than 100 Republicans have backed a resolution calling for a vote of no-confidence on the attorney general.
Judge Jackson said on Wednesday she was worried about appearing political with her decision, but also questioned whether she would be “putting [her] finger on the scale” by doing nothing.
Congress and the White House have both won previous court battles over the assertion of executive privilege. But according to legal scholars and former DOJ attorneys, the current case is unlike any other.
The civil case goes back to Feb. 4, 2011, when the department told Sen. Chuck GrassleyChuck GrassleyOvernight Tech: Facebook finds no bias but vows to change trending feature Grassley worried about FCC box proposal VA secretary comes under fire for comparing wait times to Disneyland MORE (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. 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. In attempts to reach an agreement on the subpoena, the DOJ has shown certain post-Feb. 4 documents to the committee, but Issa has said they do not satisfy the scope of his panel's request.
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.
Jackson ended the hearing on Wednesday, saying that she has "a lot to think about," but did not give a deadline for when a decision might be reached.