As you may remember, last year Obama cited executive privilege to prevent AG Eric Holder from turning over the requested Fast and Furious Records. The House held Holder in Contempt of Congress for refusing to turn over the documents regarding the failed gun-running program which armed Mexican drug cartels with weapons such as AK-47s.
Obama's main argument was the case should be dismissed because the court system had no right to interfere in an argument between the executive and legislative branches. But U.S. District Court Judge Amy Berman Jackson spent begged to differ.
“That lack of a judicial role is a deliberate part of the constitutional structure,” [Assistant AG] Gershengorn insisted, as he urged the judge to stick with the historic practice of the Congress and executive agencies sorting out such fights on their own.Judge Jackson (who was appointed by Obama) insisted the constitution called for three equal branches of government.
“It has been messy. It has been contentious. It has been political … but it has worked,” he said.
“You keep talking about the two [branches] as if the third one isn’t there,” she said.The judge rightfully suggested that if she refused to enforce the subpoena what she would really be doing is "tilting" the playing field toward the executive.
The judge called the fight over whether the documents are subject to legal privilege — in this case executive privilege — the kind of “classic legal dispute that this court has to [resolve] all the time.”
“If I adopt that position, aren’t I putting my finger on the scale in this very political dispute you want me to stay out of?” she asked.
..House General Counsel Kerry Kircher complained that Holder was seeking “absolute and judicially un-reviewable authority to determine what executive branch documents are privileged as against Congress.”Jackson didn’t rule today but she referred positively to a ruling in a similar case issued in 2008 where the court ordered George Bush to comply with House subpoenas for testimony and documents about the firing of nine U.S. attorneys.
U.S. District Court Judge John Bates, a Bush appointee, ruled that he had authority to consider the issue and that White House advisers were not immune from appearing in response to the congressional subpoenas. However, the Bush administration appealed. Bush’s term finished and he was out of office while the appeal was pending. The dispute was soon resolved, so the D.C. Circuit dismissed the appeal without resolving whether Bates was right or wrong.The fight Wednesday left the Obama administration with some strange bedfellows. Jackson noted that the current administration’s arguments tracked closely with those made by the Bush administration five years ago.This ruling is about more than finding out the truth about Fast and Furious. If the Judge rules the Administration has to comply with the subpoena (and it seems that she is leaning that way) she would be telling this President that he is not above the law, just as the Judge in Texas ruled yesterday. That would be two victories for Justice and the Constitution in two days.