‘Fast and Furious’ requires a judicial resolution

In a stunning exchange, D.C. District Court Judge Amy Berman Jackson recently explained to Department of Justice (DOJ) attorney Ian Gershengorn that the judicial branch “exists.” Jackson’s statement came in response to the DOJ’s argument that the judiciary has no jurisdiction over interbranch disputes between Congress and the president.

This interbranch controversy concerns the federal gun tracking “Fast and Furious” operation managed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). As with other incidents during President Obama’s tenure, most notably the Fort Hood, Texas, shooting investigation, the executive branch resists being subject to the traditional system of checks and balances.

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Instead, the Obama administration has either argued that Congress is powerless to compel the disclosure of testimony and documents or has acted in ways to wall itself from congressional oversight. In this case, the administration has, so far, been able to obstruct a congressional committee seeking answers to why the ATF failed to keep track of gun sales to Mexican drug cartels. The actions on the part of the ATF, Justice Department — and even Obama in making an executive privilege claim — are especially disturbing considering that the byproduct of the failed operation was the murder of a U.S. Border Patrol agent.

Obama’s executive privilege claim forced the House to subpoena the requested documents and to eventually hold Attorney General Eric Holder in contempt — the first time that the nation’s top law enforcement officer has ever received such a citation. Seeking judicial relief became the final necessary option for the House, as the Senate has been unwilling to join forces to protect the institutional interest of Congress.

The administration, after so far succeeding in keeping documents that potentially could explain more about the failed “Fast and Furious” operation and the death of a federal agent, asserts that the judiciary should stay out of the controversy by arguing, in effect: “That is how it has worked for 225 years.”

Of course the administration wants to maintain the status quo in order to continue to block any significant oversight. That is understandable considering, as House attorney Kerry Kircher has noted,  “They have the documents. We don’t have the documents.”

The current dispute should be seen in light of the vital concerns of accountability, transparency, and the rule of law that could very well be impacted by whatever Judge Jackson decides. 

Accepting the administration’s arguments would constitute a huge loss for a system of government that values checks and fears the concentration of power. What the executive branch is really asking for is a way to block congressional oversight without consequence.

The recent statements by Judge Jackson, an Obama appointee, give us hope that the administration’s effort to shut out the judicial branch will not succeed. That’s a good sign. Jackson appears likely to follow fellow D.C. District Court Judge John Bates, who rejected similar arguments made by officials in the George W. Bush administration concerning the case of the firing of U.S. attorneys.

We have previously argued that a judicial showdown is a regrettable way to handle these types of interbranch disputes. However, the Obama administration has forced such a result in failing to respect the powers of Congress and fully comply with a legitimate request for documents. Because of that, we believe the only way in this circumstance to maintain the co-equal relationship between the branches of government is for Judge Jackson to side firmly with Congress and stop the executive branch’s stonewalling.

It is the responsibility of the executive branch to make a compelling case for not fully complying with the House’s subpoena requests and not Congress’s duty to justify its power to investigate. In a system of government predicated on balanced powers and accountability, the presumption must be in favor of openness.


Sollenberger is associate professor of political science at University of Michigan-Dearborn. Rozell is professor of public policy at George Mason University. They are co-authors of the book The President’s Czars: Undermining Congress and the Constitution.