DOJ Seeks To Dismiss Contempt Suit Against Holder

The Department of Justice is seeking to dismiss the lawsuit filed by the House Oversight Committee over Attorney General Eric Holder’s refusal to turn over certain documents related to Operation Fast & Furious and over which the President claimed Executive Privilege:

The Justice Department has asked a federal court to dismiss a lawsuit by the House oversight committee seeking to compel the Obama administration to release more internal records involving the botched gun-trafficking case known as Operation Fast and Furious.

The judiciary should play no role in a dispute like this one between the executive and legislative branches, the department said — one in which the White House has asserted executive privilege over its internal deliberations, and the House of Representatives has voted to hold Attorney General Eric H. Holder Jr. in contempt for refusing to comply with the committee’s demands.

“Disputes of this sort have arisen regularly since the founding,” the department said in a brief filed Monday night in the United States District Court for the District of Columbia. “For just as long, these disputes have been resolved between the political branches through a constitutionally grounded system of negotiation, accommodation, and self-help.”


Referring to the wrangling between Congress and the administration, the agency’s brief says that the process of seeking accommodations “is political, and often disorderly and contentious, and the ultimate resolution often reflects a variety of considerations and compromises on both sides. But it is precisely the inherently political nature of the process of confrontation and resolution that makes it ill-suited for judicial review.”

Congressman Darrell Issa, the Chairman of the Committee has already responded to the motion:

Rep. Darrell Issa (R-Calif.), the chair of the oversight committee who has led the push for documents, said that the response from the DOJ should trouble Americans who don’t believe the White House and federal government are above the law.

“In perpetuating a cover-up, through false and misleading statements that even the Justice Department’s own Inspector General found troubling, the Obama administration argued for months that it did not have to meet its legal obligations to a lawfully issued congressional subpoena,” Issa said in a written statement.

“Now, the Department is advancing arguments – already rejected by the federal judiciary – that our court system does not have jurisdiction to ensure accountability either,” Issa said.

It’s difficult to say how a Court might rule on this issue. It’s true that the Court’s have tended to stay out of inter-branch disputes, especially when those disputes are purely political, but that doesn’t mean that every dispute between the Legislative and Executive Branches is one that the Court’s will stay out of . In this case, we’re really dealing with something more akin to the kind of discovery dispute that develops during a civil trial than a political matter. Additionally, the President’s assertion of Executive Privilege may make it more likely that the Court will get involved. I’ll be interested to see what the Committee’s response is when it’s filed.

Here’s the Motion To Dismiss:

DOJ Brief In Oversight Committee v. Holder

FILED UNDER: Congress, Law and the Courts, US Politics, , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Dave Schuler says:

    That was the expected next step, Doug. As you suggest, the real questions are how and when the court will rule.

  2. @Dave Schuler:

    Under the rules in the D.C. Circuit, responsive pleadings aren’t due from the Plaintiff until just shortly before Election Day. We’re unlikely to get a ruling on this before December is my guess.

  3. legion says:

    If the President declares Executive Privilege, how is it on Holder’s back to decide whether that exercise is legitimate or not? Or is Issa just going after Holder because he know he’ll never have the votes to get an impeachment against Obama?

  4. Jenos Idanian #13 says:

    Try and wrap your heads around this one:

    1) Executive Privilege, traditionally, refers to matters directly dealing with the President and his top aides.

    2) The official story about Fast & Furious is that the President and his top aides were completely out of the loop on the matter.

    I repeat myself: by asserting Executive Privilege, Obama is taking complete ownership of the matter. How generous of him.

  5. David M says:

    @Jenos Idanian #13:

    You should probably read up on what exactly executive privilege is before making any more statements on the topic.

    Deliberative process involves a broader scope of executive branch activity: discussions involving White House staff or within other agencies on legal or policy decisions that don’t necessarily involve the president or his immediate advisers.

    Holder asked Obama to invoke executive privilege over documents having to do with “the Department’s deliberative process concerning how to respond to congressional and related media inquiries into that operation.”…The letter doesn’t explicitly mention presidential communications…the communications could be just between Justice Department officials and not include anybody at the White House itself.

  6. Jenos Idanian #13 says:

    @David M: That’s Bureaucratese for “how dare you question our coverup!”

    And just how much deliberation is involved in “why don’t we just tell the truth?”

    Oh, yeah. Holder and Obama. Never mind…

  7. legion says:

    @Jenos Idanian #13: It’s so inconvenient when facts, like the actual definition of executive privilege, don’t sync themselves up to your own personal belief system, isn’t it?

    “Obama and Holder broke the law!”
    “What law?”
    “The law I just made up that says Democrats have to suck!”
    “Piss off.”

  8. Jenos Idanian #13 says:

    @legion: Oh, come on, champ. Please reconcile “it was just some low-level ATF officials in a district office who went rogue” with “this directly affects how the president conducts his daily affairs.” Not even Rodney Dangerfield and his legendary Triple Lindy could pull that one off. Ron Jeremy in his prime wasn’t that flexible.

  9. David M says:

    @Jenos Idanian #13:

    Deliberative process involves a broader scope of executive branch activity: discussions involving White House staff or within other agencies on legal or policy decisions that don’t necessarily involve the president or his immediate advisers.

    Try reading the bold part again, executive privilege just doesn’t mean what you are claiming.

  10. bill says:

    transparency has never been so opaque.

  11. legion says:

    @Jenos Idanian #13: As David M points out (more than once) Executive Privilege is not what you think it is. Go back and try again.