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

A U.S. House of Representatives lawyer told a federal judge she 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 House general counsel, told U.S. District Judge Amy Berman Jackson 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.

Kircher argued against a Justice Department request to throw out a suit against U.S. Attorney General Eric Holder filed by the Republican-controlled House Oversight and Government Reform Committee to enforce a subpoena in the panel’s inquiry into so-called gun walking. That practice allowed illegal gun purchases in the U.S. in an effort to link the weapons to Mexican gangs.

Kircher noted that Holder was cited for contempt by the panel for refusing to turn over documents it sought.

“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 illegal gun purchases in the law enforcement operation to be employed.

An inspector general’s report outlined management failures as well as flaws in the program, which lost track of about 2,000 guns purchased by straw buyers. Two of the weapons were found at the scene of the 2010 killing in Arizona of U.S. Border Patrol Agent Brian Terry.

The Justice Department asked the court to dismiss the lawsuit, filed in August by the committee to force Holder to comply with the subpoena.

Ian Gershengorn, a deputy assistant attorney general, said Jackson is obligated by the Constitution’s separation-of-powers doctrine to avoid disputes between the executive and legislative branches.

Judges should limit themselves to intervening in disputes between the legislative and executive branches only when individual rights are at stake, Gershengorn said.

Negotiation Impact

He warned that taking the case would short-circuit Congressional willingness to negotiate with the executive branch.

“The lure of running to court is overwhelming,” Gershengorn said.

Jackson asked Gershengorn skeptically if staying out of the conflict would amount to taking sides because it would enable the Justice Department to avoid producing the records.

Wouldn’t that be “putting my finger on the scale in this political dispute you’d like me to stay out of?” she asked.

“Congress has a host of powers” it can bring to bear on the executive branch, including the power of the purse, the ability to hold up nominations “and in extraordinary cases, of impeachment,” Gershengorn said.

Congressional power boils down to controlling the budget, and that’s not a useful tool in the current stand-off, Kircher said.

“We get through the process, and all it means, really, is less money,” Kircher said. “We don’t get the documents. Eventually, we’ll get to zero and then they’ll say, ‘Now we can’t produce the documents because we don’t have the money.’”

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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