U.S. District Judge Amy Berman Jackson ruled Monday against Eric Holder, saying the U.S. attorney general could no longer hide behind executive privilege and refuse to produce a portion of the records called for in a subpoena issued by the Committee on Oversight and Government Reform of the United States House of Representatives.
In short, this likely means that a fierce battle will take place soon in the Republican-controlled House to get at the truth about the “Fast and Furious” scandal involving supplying criminals and Mexican drug cartel members with guns that were later used to kill Americans along the nation’s southern border.
Judge Jackson’s 44-page Memorandum Opinion begins as follows:
The Committee on Oversight and Government Reform of the United States House of Representatives has filed this action to enforce a subpoena it issued to the Attorney General of the United States, Eric H. Holder, Jr. The Attorney General refused to produce a portion of the records called for by the subpoena on the grounds that they are covered by the executive privilege, and the Committee seeks a declaration that the invocation of the privilege is invalid in this instance and that the documents must be produced. The matter is before the Court on defendant’s motion to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6): the Attorney General takes the position that a dispute between the legislative and executive branches must be resolved through negotiation and accommodation, and that the judiciary may not, or at least, should not, get involved.
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.
Click here to read the rest of the opinion.
Hopefully, this time, justice will finally be served.