Before Fast and Furious, a Bitter Subpoena Fight

By Joe Palazzolo

If the House files a lawsuit in federal court to enforce its subpoena for documents related to Fast and furious, it would be the second time in recent history that the legislative branch enlisted the judicial branch to get what it wanted from the executive branch — “a nearly perfect separation of powers storm,” to borrow a phrase from Cornell law professor Josh Chafetz.

In 2008, when the Democrat-controlled House sued two of President George W. Bush’s aides to enforce congressional subpoenas, there wasn’t much precedent.

The House Judiciary Committee, which was investigating the firings of nine U.S. attorneys, had subpoenaed White House counsel Harriet Miers and White House Chief of Staff Joshua Bolten. The subpoenas sought testimony and documents from Ms. Miers and documents from Mr. Bolton.

President Bush, like President Obama in the Fast and Furious investigation, asserted executive privilege, refusing to produce Ms. Miers, Mr. Bolten or the documents. The House held the two aides in contempt, and the citation was referred to the U.S. attorney for the District of Columbia for investigation and potential prosecution. That went nowhere. Then Attorney General Michael Mukasey instructed the U.S. attorney to ignore it.

So the House filed a lawsuit in federal court in Washington. It ended when the Obama administration took office and helped referee a settlement that included turning over some of the documents the Democratic House members sought.

But before the case settled, the House won a major victor in federal court. And it is likely to play a key role in the current fight between House republicans and Attorney General Eric Holder over documents that reflect how the Justice Department reacted to lawmakers’ questions about Operation Fast and Furious last year.

In 2008, U.S. District Judge John Bates, in a 93-page ruling, found that the judiciary was well-positioned to enforce a congressional subpoena. Whether the federal courts had jurisdiction to consider such disputes had been in question up to that point. Judge Bates noted that a civil lawsuit was preferable to the alternative – Congress using its inherent contempt powers to lock up the aides. He wrote,

[T]he Committee has issued subpoenas to two high-ranking executive branch officials who have refused to comply, citing executive privilege. The Committee’s attempt to pursue criminal prosecution of its contempt of Congress citation was thwarted by the Executive. Exercise of Congress’s inherent contempt power through arrest and confinement of a senior executive official would provoke an unseemly constitutional confrontation that should be avoided. Thus, the Committee filed this suit to vindicate both its right to the information that is the subject of the subpoena and its institutional prerogative to compel compliance with its subpoenas. A harm to either interest satisfies the injury-in-fact standing requirement. Clear judicial precedent, along with persuasive reasoning in OLC opinions, establishes that the Committee has standing to pursue this action and, moreover, that this type of dispute is justiciable in federal court.

Judge Bates ruled that Ms. Miers had to at least show up in Congress to assert executive privilege and that the White House had to produce a more detailed description of the privileged documents it sought to withhold. (He stopped short of requiring the executive to turn over a privilege log, however.)

That ruling gives Republicans who are seeking the Fast and Furious documents a strong position in negotiations with the White House. (The House voted Thursday to to authorize a civil contempt lawsuit.) But if they’re out for attorney general’s head, there are much faster ways of going about it. By the time the lawsuit wound its way through the courts, Mr. Holder would likely be long gone, and on his own terms.