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Executive Privilege

Fast and Furious Case

Major Issue:  Whether the Executive Branch may assert a deliberative process privilege in response to a Congressional subpoena, the nature and contours of that privilege, and whether a district court’s rulings related to the privilege should be vacated once the parties reached an accommodation.

Case Status:  Complete; no ongoing proceedings.

Case Description:  In 2012, the House Committee on Oversight & Government Reform filed a complaint with the D.C. district court seeking enforcement of a subpoena issued to the Department of Justice (“DOJ”) for certain records related to a law enforcement effort known as Operation Fast and Furious.  On Sept. 30, 2013, Aug. 20, 2014, and Jan. 19, 2016, the district court issued rulings holding that the subpoena could be enforced, but that DOJ could also assert a deliberative process privilege in response to the document requests.  Both DOJ and the House appealed the rulings to the D.C. Circuit Court.  In 2017, the parties stayed the appeal pending settlement negotiations.  In 2018, the parties informed the D.C. Circuit that they had reached a settlement conditioned on the district court’s vacating its 2014 and 2016 rulings.  The parties jointly moved for that action by the district court.  However, on Oct. 22, 2018, the district court denied the motion to vacate its earlier rulings.  

The district court’s 2018 opinion instead reaffirmed its earlier rulings that the dispute over the Congressional subpoena was a justiciable issue; Congress could seek to enforce its subpoena in court; the Executive Branch could invoke “the deliberative process prong of the executive privilege” to shield records from production; the privilege could not be asserted on a blanket basis, but only on a document-by-document basis; the privilege covered internal deliberations concerning communications with Congress or the media; and the privilege was not absolute, but could be waived or could be overcome by a showing of need by Congress.

Procedural Posture:  D.C. District Judge Amy Berman Jackson was assigned to the Fast and Furious matter, Case No. 12-cv-1332, and issued the district court rulings.  In 2016, DOJ and the House filed an appeal with the D.C. Circuit.  House Committee on Oversight and Government Reform v. Sessions, Case No. 16-5078 (D.C. Cir. 2016).  On May 8, 2019, DOJ and the House filed a joint pleading with the D.C. Circuit Court of Appeals affirming settlement of the case despite the district court’s decision against vacating its earlier rulings, and they voluntarily dismissed the appeals court case with prejudice.  House Committee on Oversight and Government Reform v. Barr, Case No. 16-5078 (D.C. Cir. 2019).  There are no ongoing proceedings in this matter.

On September 30, 2013, August 20, 2014, and January 19, 2016, the D.C. district court issued rulings ordering the Department of Justice (DOJ) to produce documents in response to a subpoena issued by the House Committee on Oversight and Government Reform related to a law enforcement effort known as Operation Fast and Furious.  The rulings also held that DOJ could assert a deliberative process privilege in response to some of the document requests.  Both DOJ and the House appealed the rulings to the D.C. Circuit Court.  In 2017, the parties stayed the appeal pending settlement negotiations. 

In 2018, the parties informed the D.C. Circuit that they had reached a settlement conditioned on the district court’s vacating its earlier rulings and dismissing the case with prejudice.  The parties jointly moved for that action by the district court.  However, on Oct. 22, 2018, the district court denied the motion to vacate its earlier rulings.  House Committee on Oversight and Government Reform v. Sessions, Case No. 16-5078 (D.D.C. Oct. 22, 2018).

The district court’s 2018 opinion instead reaffirmed its earlier rulings that the dispute over the Congressional subpoena was a justiciable issue; Congress could seek to enforce its subpoena in court; the Executive Branch could invoke “the deliberative process prong of the executive privilege” to shield records from production to the legislature; the privilege could not be asserted on a blanket basis, but only on a document-by-document basis; the privilege covered internal deliberations concerning communications with Congress or the media; and the privilege was not absolute, but could be waived or could be overcome by a showing of need by Congress.

On May 8, 2019, DOJ and the House filed a joint pleading with the D.C. Circuit Court of Appeals affirming settlement of the case despite the district court’s decision against vacating its earlier rulings, and the parties voluntarily dismissed the appeals court case with prejudice.  There are no ongoing proceedings in this matter.

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