The US Department of Justice (DOJ) [official website] on Monday sought dismissal [text, PDF] of a suit by the House Oversight and Government Reform Committee [official website] against Attorney General Eric Holder [official profile] for failure to produce subpoenaed documents relating to Operation Fast and Furious [materials]. The lawsuit [JURIST report], filed in mid-August, requests a court order requiring Holder to deliver specific documents subpoenaed by the committee in October and withheld by Holder under an assertion of executive privilege [Cornell LII backgrounder]. The DOJ's motion states that the committee is attempting to use the judiciary to resolve a dispute between Congress and the Executive branch, which the DOJ argues has always been resolved though negotiation and accommodation between the two branches:
For two hundred years, disputes over congressional requests for Executive Branch information have followed a common trajectory. Ordinarily, the Executive Branch provides information responsive to legitimate legislative inquiries while withholding material that implicates important Executive Branch prerogatives. Both sides seek to balance Congress's legitimate investigative concerns against the important confidentiality concerns of the Executive. The strength and nature of Congress's desire for information and the Executive's desire for confidentiality shift over the course of the negotiations, for a host of reasons. The resulting "accommodation process" between the two co-equal Branches is political, and often disorderly and contentious, and the ultimate resolution often reflects a variety of considerations and compromises on both sides. But it is precisely the inherently political nature of the process of confrontation and resolution that makes it ill-suited for judicial review.The DOJ argues that the intervention of the judiciary would alter the separation of powers [Cornell LII backgrounder] between the branches of the US government.
Operation Fast and Furious was a failed DOJ investigation involving tracked guns that were permitted to travel from Arizona to Mexico in an attempt to stop weapons trafficking by high-level arms dealers. In June the DOJ announced that it will not prosecute Holder after the Oversight Committee voted to hold him in contempt of Congress [JURIST reports] for failing to comply fully with the committee's subpoenas. Upon being held in contempt Holder responded [press release], "Today's vote is the regrettable culmination of what became a misguided—and politically motivated—investigation during an election year," and stated he would continue to focus on the government's job of protecting the American people. Obama ultimately asserted executive privilege on the subpoenaed documents, effectively rendering the contempt charge moot. The DOJ submitted a joint staff report [text, PDF] to the committee in July 2011, discussing the effects of the admittedly failed operation in Mexico. The committee began investigating the operation [press release] through the DOJ's Bureau of Alcohol, Tobacco, Firearms, and Explosives [official website] in April of that year.