House lawyers defend Eric Holder lawsuit
The House earlier took the unprecedented move of finding Holder in contempt. | AP Photo
By JOHN BRESNAHAN | 11/21/12 7:16 PM EST
Lawyers representing a House committee in its civil-contempt
lawsuit against Attorney General Eric Holder are urging a federal judge
not to throw out the case, arguing that to do so would “tilt the balance
of powers” between Congress and the White House.
The House General Counsel’s office, which is handling the lawsuit for the House Oversight and Government Reform Committee, also noted that the issue of executive privilege became a high-profile legal tussle between the Bush administration and a Democratic-controlled House during the 2007-08 probe into the firing of several U.S. attorneys. At that time, President George W. Bush eventually allowed top White House officials, including Karl Rove, to be interviewed by congressional investigators. However, that came only after a federal judge initially sided with Congress in a civil suit against the Bush White House.
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But the effort failed, and weapons related to the Fast and Furious program were found at the scene when a Border Patrol agent was killed in Dec. 2010.
Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) has subpoenaed internal Justice Department documents related to the department’s formal response to the committee — later withdrawn as “flawed” — stating that Holder and other top DOJ officials did not know about the gun-walking.
After President Barack Obama asserted executive privilege over the DOJ documents and refused to turn them over to Issa, the House took the unprecedented move of finding Holder in contempt.
While the Justice Department — as it did in the Bush administration — will not enforce a criminal contempt resolution against Holder, the civil contempt lawsuit is moving forward in court.
DOJ has argued in legal filings — as the Bush administration did in 2008 — that the executive branch’s decision not to comply with such subpoenas from Congress cannot be reviewed by the judiciary, a sweeping claim of executive power. DOJ has sought to have the lawsuit dimissed.
Yet, House attorneys say such a position would permanently alter the balance of power between the two branches and amounts to a “breathtaking flight from accountability here [that] makes a mockery of our nation’s core democratic principles.”
“The Attorney General’s Motion to Dismiss … relies to a very significant degree on an ungrounded notion of‘separation of powers’ that reduces essentially to the proposition that the Executive may not be called to account before the Judiciary with respect to its dealings with the Legislative Branch,” House attorneys stated in their Wednesday filing.
“This extreme notion, if accepted, would significantly hamstring Congress’s ability to oversee — and thus to guard against — malfeasance, abuses of authority, and mismanagement by the Executive. By advocating for this Court to avoid reaching the merits here, the Attorney General really is asking this Court to tilt the balance of powers between the two political branches radically in favor of the Executive.”
The Justice Department is scheduled to respond to the House legal motion by Dec. 17. A ruling in the case is not expected until next year, and even then, appeals by the losing side could potentially drag it out for months longer.
The House General Counsel’s office, which is handling the lawsuit for the House Oversight and Government Reform Committee, also noted that the issue of executive privilege became a high-profile legal tussle between the Bush administration and a Democratic-controlled House during the 2007-08 probe into the firing of several U.S. attorneys. At that time, President George W. Bush eventually allowed top White House officials, including Karl Rove, to be interviewed by congressional investigators. However, that came only after a federal judge initially sided with Congress in a civil suit against the Bush White House.
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The current legal showdown between the executive and
legislative branches stems from the Oversight and Government Reform
Committee’s probe into the now infamous Fast and Furious “gun-walking”
program.
That program was run by the Bureau of Alcohol, Tobacco, Firearms and
Explosives, which comes under the aegis of the Justice Department, and
involved allowing guns purchased by straw buyers in the United States to
go to Mexican drug cartels. Federal investigators hoped to track the
illegal gun purchases back to senior cartel figures.But the effort failed, and weapons related to the Fast and Furious program were found at the scene when a Border Patrol agent was killed in Dec. 2010.
Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) has subpoenaed internal Justice Department documents related to the department’s formal response to the committee — later withdrawn as “flawed” — stating that Holder and other top DOJ officials did not know about the gun-walking.
After President Barack Obama asserted executive privilege over the DOJ documents and refused to turn them over to Issa, the House took the unprecedented move of finding Holder in contempt.
While the Justice Department — as it did in the Bush administration — will not enforce a criminal contempt resolution against Holder, the civil contempt lawsuit is moving forward in court.
DOJ has argued in legal filings — as the Bush administration did in 2008 — that the executive branch’s decision not to comply with such subpoenas from Congress cannot be reviewed by the judiciary, a sweeping claim of executive power. DOJ has sought to have the lawsuit dimissed.
Yet, House attorneys say such a position would permanently alter the balance of power between the two branches and amounts to a “breathtaking flight from accountability here [that] makes a mockery of our nation’s core democratic principles.”
“The Attorney General’s Motion to Dismiss … relies to a very significant degree on an ungrounded notion of‘separation of powers’ that reduces essentially to the proposition that the Executive may not be called to account before the Judiciary with respect to its dealings with the Legislative Branch,” House attorneys stated in their Wednesday filing.
“This extreme notion, if accepted, would significantly hamstring Congress’s ability to oversee — and thus to guard against — malfeasance, abuses of authority, and mismanagement by the Executive. By advocating for this Court to avoid reaching the merits here, the Attorney General really is asking this Court to tilt the balance of powers between the two political branches radically in favor of the Executive.”
The Justice Department is scheduled to respond to the House legal motion by Dec. 17. A ruling in the case is not expected until next year, and even then, appeals by the losing side could potentially drag it out for months longer.
Read more: http://www.politico.com/news/stories/1112/84153.html#ixzz2CuQ6yMdo
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