JULY 31, 2014
Ruling will lead to disclosure of information about documents withheld from House under Obama executive privilege claim that led to Holder contempt of Congress finding
(Washington, DC) – Judicial Watch announced today that on July 18, 2014, the U.S. District Court for the District of Columbia ruled that the Obama Department of Justice (DOJ) must turn over to the organization a “Vaughn index” of all requested Operation Fast and Furious materials from the June 2012 Freedom of Information Act (FOIA) request and subsequent September 2012 FOIA lawsuit (Judicial Watch v. Department of Justice (No. 1:12-cv-01510)). Judicial Watch sought all of the documents the Obama White House was withholding from the House of Representatives under executive privilege claims.
The ruling by U.S. District Court Judge John D. Bates lifted a lengthy 16-month delay of this open records lawsuit. This order forces the Obama DOJ, for the first time and by October 1, 2014, to provide a detailed listing of all documents that it has withheld from Congress and the American people for years about the deadly Fast and Furious gun running scandal. The ruling can be found here.
The DOJ opposed the Judicial Watch action, claiming it would interfere with the department’s continuing litigation with the House Oversight Committee concerning these Fast and Furious documents subpoenaed in October 2011. In September 2012, Obama asserted executive privilege over the documents. In the July 2014 opinion overruling the Obama Justice Department’s request for an almost indefinite hold on Judicial Watch’s legal right obtains this information under the Freedom of Information Act Bates said:
In the [February 15, 2013] order granting the stay, this court explicitly noted that the DOJ ‘does not seek, and the court will not award, an indefinite stay pending ultimate resolution of the House Committee litigation,’ and that ‘the benefits of delaying this case might well [become] too attenuated to justify any further delay” …
Because many of the issues to be resolved in this case do not overlap with the House committee, and because resolving those issues will not risk upsetting the delicate balance of powers in subpoena disputes between the political branches, the Court will require DOJ to produce a Vaughn index here.
In fact, the court suggested that disclosing information to Judicial Watch might actually resolve the legal dispute now before Judge Amy Berman Jackson between the Obama administration and Congress:
True, nothing in the subpoena enforcement context of House Committee would require DOJ to produce a particularized description of the withheld documents…But this is a FOIA case, and since 1973, when Vaughn was decided, courts in this circuit have required agencies to justify their FOIA withholdings on a particularized basis. And doing so here will not prematurely expose or resolve the executive privilege issues ahead of Judge Jackson and the political branches; it will merely permit the parties and this Court to cull from the dispute any documents as to which a valid, non-executive privilege reason for withholding exists, thereby narrowing or perhaps even resolving the case. To the extent DOJ argues that the mere production of the Vaughn index—not involving the release of any documents in dispute—would alter the historical balance of powers between the branches, any unbalancing would result from FOIA itself, a law passed by Congress and signed into law by the President, and which this Court cannot ignore forever.
Judge Bates also noted no court has ever “expressly recognized” President Obama’s executive privilege claims that his administration is using to keep these documents secret from Congress and the American people.
The DOJ claims, in addition to other Exemption 5 rationales, at least two distinct forms of executive privilege to justify withholding documents: a “deliberative process” privilege of constitutional dimensions and a “congressional response work-product” privilege. See: Mem.in Supp. of Def.’s Mot. for Summ. J., House Committee, No. 12-1332 [ECF No. 63] (“House Committee Def.’s Mot.”) at 21-27, 27-30. It appears that neither form has been expressly recognized by any court Id (citing Senate Select Comm. on Pres. Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974)).
A Vaughn index must: (1) identify each document withheld; (2) state the statutory exemption claimed; and (3) explain how disclosure would damage the interests protected by the claimed exemption.” In ordering the DOJ to provide Judicial Watch the Vaughn index, the Court ruled, “In this circuit, when an agency is withholding documents under exemption claims, courts require that the agency provide a Vaughn index so that the FOIA requester – at a distinct informational disadvantage – may test the agency’s claims.”
Fast and Furious was a DOJ/Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) “gun-running” operation in which the Obama administration reportedly allowed guns to go to Mexican drug cartels in hopes that they would end up at crime scenes, thereby advancing gun-control policies. Fast and Furious weapons have been implicated in the murder of Border Patrol Agent Brian Terry and hundreds of other innocents in Mexico.
On June 20, 2012, President Obama asserted executive privilege over Fast and Furious documents the House Oversight Committee had subpoenaed eight months earlier. Judicial Watch filed its FOIA request two days later. When the DOJ denied that request, Judicial Watch filed a FOIA lawsuit on September 12, 2012. On February 15, 2013, Judge Bates stayed the case, in part to allow ongoing settlement discussions between the DOJ and the House Committee to continue. Judge Bates’ order lifted the stay after a lengthy July 18 hearing. Generally speaking, the documents at issue are about how and if the Obama administration misled Congress about the Fast and Furious matter.
“Once again, Judicial Watch has beat Congress to the punch in getting key information about another Obama scandal – this time, the Fast and Furious outrage,” said Judicial Watch President Tom Fitton. “A federal court has ordered the Obama administration to produce information that could, for the first time, provide specific details who in the administration is responsible for Fast and Furious lies to Congress and the American people. This is a battle that put Eric Holder in contempt of Congress, saw Nixonian assertions of executive privilege by Barack Obama, and a hapless Congress in face of all this lawlessness. Finally, we may get some accountability for Border Patrol Agent Brian Terry and the countless others murdered as a result of the insanely reckless Obama administration program.”
The Judicial Watch lawsuit for Oversight Committee documents is one of several FOIA lawsuits Judicial Watch has filed in its effort to obtain information concerning the Fast and Furious scandal:
- On October 11, 2011, Judicial Watch sued the DOJ and the ATF to obtain all Fast and Furious records submitted to the House Committee on Oversight.
- On June 6, 2012, Judicial Watch sued the ATF seeking access to records detailing communications between ATF officials and Kevin O’Reilly, former Obama White House Director of North American Affairs at the U.S. National Security Council.
- On September 5, 2013, Judicial Watch sued the DOJ seeking access to all records of communications between DOJ and the Oversight Committee relating to settlement discussions in the Committee’s 2012 contempt of Congress lawsuit against Holder. The contempt citation stemmed from Holder’s refusal to turn over documents to Congress related to the Fast and Furious gunrunning scandal.
- On May 28, 2014, Judicial Watch sued the DOJ on behalf of ATF Special Agent John Dodson, who blew the whistle on Operation Fast and Furious and was then subjected to an alleged smear campaign designed to destroy his reputation.