Lawyers for U.S. Attorney General Eric Holder and a House committee said they will discuss settling a lawsuit to enforce congressional subpoenas probing the Justice Department’s Operation Fast and Furious.
Holding settlement talks “is the appropriate course here,” Ian Gershengorn, a deputy assistant attorney general, told U.S. District Judge Amy Berman Jackson in a hearing today in Washington.
Kerry Kircher, the House general counsel, said the meeting should occur in the “near future.” No date has been set. The parties rejected the judge’s offer to appoint a mediator.
The lawsuit against Holder brought by the House Oversight and Government Reform Committee stems from the panel’s investigation into so-called gun walking, which allowed illegal gun purchases in the U.S. to proceed in an effort to link the weapons to Mexican gangs. Holder, citing executive privilege, has refused to give lawmakers some material they wanted.
The Republican-controlled House is seeking documents describing internal Justice Department discussions about a February 2011 letter to lawmakers that Holder later said mistakenly contained incorrect information.
The letter said the Bureau of Alcohol, Tobacco, Firearms and Explosives, which conducted Fast and Furious, hadn’t “knowingly allowed” the tactics in the law enforcement operation to be employed.
The committee cited Holder for contempt of Congress in June. President Barack Obama has asserted executive privilege over the documents and declined to turn them over.
In an October filing seeking dismissal of the case, Holder said that under the U.S. Constitution’s separation of powers doctrine, conflict over Operation Fast and Furious should be resolved between the political branches.
During today’s hearing, Gershengorn said “a lot has happened” since lawmakers sued in August. He pointed to a Sept. 20 inspector general’s report that found management failures and flawed strategy in the gun-tracking operation.
The inspector general report outlined management failures as well as flaws in the program that lost track of about 2,000 guns purchased by straw buyers. Two of the guns were found at the scene of the 2010 killing in Arizona of U.S. Border Patrol Agent Brian Terry.
Republicans have faulted Holder’s oversight of Fast and Furious and his responses to lawmakers’ queries about it. Holder wasn’t found in the report to have known about the operation until early 2011, when lawmakers began to probe its fallout.
“There does seem to be some overlap between documents at issue in the lawsuit and documents now made public” in the inspector general’s report, Jackson said.
If the parties can’t agree, Jackson said, she will consider the department’s argument that the court lacks jurisdiction over the case before deciding whether Congress has a right to any of the documents it seeks.
She said today there was “not a lot of controlling legal precedent” to guide any decision. She scheduled argument for Jan. 10 on the department’s motion to dismiss.
Jackson, who was appointed to the court by Obama, told the parties that although she has connections to lawyers on both sides of the case, she doesn’t plan to pass it to another judge.
She said she worked with Kircher while in private practice and that he was a reference for her during a background investigation for the federal bench. Deputy Attorney General James Cole was also a reference for her, and their children were in the same middle-school class, she said.
“Do what you think is best after speaking to your clients about it,” Jackson said.
The case is Committee on Oversight and Government Reform v. Holder, 1:12-cv-01332, U.S. District Court, District of Columbia (Washington).
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