A federal judge delivered a blow to U.S. Attorney General Eric Holder‘ Monday night when she denied the Justice Department’s motion to dismiss the lawsuit brought against it in the Fast and Furious investigation.
U.S. District Court Judge Amy Berman Jackson, an Obama appointee, “turned down the Justice Department’s request to dismiss a lawsuit brought by the House Oversight and Government Reform Committee after President Barack Obama asserted executive privilege to prevent some records about the administration’s response to the ‘Operation Fast and Furious’ gunrunning scandal from being turned over to Congress,” Politico reported.
According to the article:
“This case presents the sort of question that the courts are traditionally called upon to resolve,” Jackson said in her 44-page decision, issued more than five months after lawyers argued the issue in her packed courtroom and more than a year after the House committee filed suit. “Dismissing the case without hearing it would in effect place the court’s finger on the scale, designating the executive as the victor based solely on his untested assertion that the privilege applies,” she wrote.
In June 2012, months after Congressional hearings exposed administration lies and cover-ups regarding the botched Operation Fast and Furious, the House voted to hold Attorney General Eric Holder in civil and criminal contempt of Congress after he failed to turn over subpoenaed documents.
When President Obama invoked executive privilege to prevent the documents from being turned over to Congress, House lawyers filed a lawsuit in federal court seeking to force the administration to turn over the documents.
“Jackson hasn’t ruled yet on whether Obama had authority to assert executive privilege over records never provided to the president or his advisers,” Politico reported, but the issue, she ruled, is one the court should hear.
The motion to dismiss will be denied. The fact that this case arises out of a dispute between two branches of government does not make it non-justiciable; Supreme Court precedent establishes that the third branch has an equally fundamental role to play, and that judges not only may, but sometimes must, exercise their responsibility to interpret the Constitution and determine whether another branch has exceeded its power.
In the Court’s view, endorsing the proposition that the executive may assert an unreviewable right to withhold materials from the legislature would offend the Constitution more than undertaking to resolve the specific dispute that has been presented here. After all, the Constitution contemplates not only a separation, but a balance, of powers.