House Says Judge Has Power in DOJ Gun-Probe Subpoena Case

A U.S. House of Representatives lawyer said a federal judge has the power to decide whether the Justice Department must comply with a subpoena issued in a congressional probe of Operation Fast and Furious

Kerry Kircher, the general counsel for the House, told U.S. District Judge Amy Berman Jackson at a hearing today in Washington that unless she steps in, the balance of power between Congress and the White House will tilt too heavily in favor of the president.

The suit against U.S. Attorney General Eric Holder brought by the Republican-controlled 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, invoking executive privilege, refused to give lawmakers some material and was cited by the panel for contempt.

“That didn’t get us anywhere,” Kircher said today. Four months of negotiation with the department have also been fruitless, he told Jackson.

The committee is seeking documents describing internal Justice Department discussions about a February 2011 letter to lawmakers that Holder later said mistakenly contained incorrect information.

Not ‘Knowingly’

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.

An inspector general’s 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.

The Justice Department is asking the court to dismiss the lawsuit filed in August by the committee seeking to force Holder to comply with the subpoena.

Ian Gershengorn, deputy assistant attorney general at the Justice Department, urged Jackson to throw the case out, saying she’s obligated by the Constitution’s separation-of-powers doctrine to stay out of disputes between the executive and legislative branches.

The case is Committee on Oversight and Government Reform v. Holder, 1:12-cv-01332, U.S. District Court, District of Columbia (Washington).

To contact the reporter on this story: Andrew Zajac in Washington at

To contact the editor responsible for this story: Michael Hytha at

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