By JOSH GERSTEIN |
Attorney General Eric Holder has moved to appeal a judge's ruling allowing the House of Representatives to continue with a contempt case stemming from his refusal to turn over documents related to the Justice Department's response to the Operation Fast and Furious gunwalking controversy.
In a motion filed Friday night, the Justice Department asked U.S. District Court Judge Amy Berman Jackson to allow it to take an appeal now in the lawsuit stemming from President Barack Obama's decision to invoke executive privilege and the House's subsequent votes last year holding Holder in contempt.
The Obama administration urged Jackson to throw out the case on the grounds that the courts could not or should not resolve such disputes between the executive and legislative branches. But in a September ruling, the judge—an Obama appointee—rejected that position.
The new motion (posted here) asks Jackson to allow the U.S. Court of Appeals for the D.C. Circuit to weigh in on that question before the case continues.
"Absent settlement (which depends on the willingness of both parties to achieve a negotiated resolution), or an immediate appeal, this Court will proceed toward deciding the scope of the President’s assertion of Executive Privilege in response to a congressional demand, and will do so absent a definitive ruling from the Circuit that such a novel judicial inquiry, in a suit instituted by a Committee of Congress, is appropriate under the law, including the Constitution," the DOJ motion argues.
"The very experience of participating in such proceedings will cause harm—to the Defendant, the Executive Branch, and the separation of powers—that cannot be reversed if the D.C. Circuit ultimately rules in Defendant’s favor on the threshold questions presented," the motion says. "In light of the harm to the separation of powers that such an adjudication would entail, including the impact of such proceedings on the negotiation process between the political Branches—a process that has generally proceeded without judicial involvement since the inception of congressional oversight—Defendant’s jurisdictional objections should be resolved by the Circuit before this Court takes such a momentous step."
Jackson has not yet ruled on the validity of Obama's executive privilege claim with respect to the documents in dispute, which pertain to the Justice Department's and likely the White House's response to the committee's investigation into Operation Fast & Furious. The operation, a Bureau of Alcohol, Tobacco, Firearms and Explosives undercover investigation, was found to have allowed as many as 2000 guns to flow to criminals including Mexican narcotrafficking gangs through a tactic dubbed "gunwalking."
Holder has called the practice unacceptable and described the operation as deeply flawed.http://www.politico.com/blogs/under-the-radar/2013/11/holder-seeks-fast-and-furious-appeal-177665.html#.Uof_20ayh-k.twitter