DOJ Hopes to Stall Lawsuit Seeking Access to Fast and Furious Records

The Obama administration is pushing gun control in the wake of the Sandy Hook, Connecticut, shootings. President Obama is using the murders as a pretext to undermine the Second Amendment and collect data on lawful gun owners. But this administration won’t come clean on its own gunrunning operation, Operation Fast and Furious, which led to the death of Border Patrol Agent Brian Terry and countless Mexican citizens. 

In fact, the Obama administration recently filed an outrageous court motion saying it doesn’t have to answer to the American people, or abide by the Freedom of Information Act (FOIA) at all in this scandal!

This filing was made in our FOIA lawsuit seeking access to Operation Fast and Furious records withheld from Congress by President Obama under executive privilege on June 20, 2012. Our attorneys responded almost immediately. And so we filed a brief in response to the Department of Justice (DOJ) motion, which calls upon the court to impose an indefinite delay in considering our lawsuit.

Rather than respond substantively to our FOIA, the DOJ argued in court that our lawsuit should be subject to a stay of proceedings because it is “ancillary” to a separate lawsuit filed by the House Oversight and Government Reform Committee against the DOJ. The Court “should let the process of negotiation and accommodation [between the House Committee and the DOJ] run its course, and then decide with the input of the parties whether and how this action may appropriately proceed at that time,” the DOJ argued, effectively abrogating the FOIA. The Obama DOJ even suggested that the Judicial Watch litigation might encourage the Congress to fight harder to get the same documents in separate litigation.

So the American people are supposed to wait until Congress and the White House figure this out?

Judicial Watch countered that the FOIA demands a response, that its lawsuit is more straightforward than the House lawsuit and is ripe for consideration on its merits. A decision on the House Committee lawsuit, meanwhile, could be delayed for months, if not years:

This notion that [Judicial Watch’s] lawsuit is in some way inferior [to the House lawsuit] is simply incorrect. [Judicial Watch] has as much of a right under the law as the House Committee to seek access to records of Defendant. In fact, since Defendant does not challenge [Judicial Watch’s] claim on jurisdictional grounds, it could be reasonably argued that [Judicial Watch’s] right is greater – it is certainly clearer and simpler – than that of the House Committee… Whereas [Judicial Watch’s] FOIA lawsuit is ripe for adjudication on the merits, the House Committee suit could be months, if not years, away from reaching the same stage.

The DOJ also argued that Judicial Watch’s lawsuit might somehow interfere with negotiations between the president and Congress. (As if these negotiations have been at all productive!) Judicial Watch countered: “Regardless of any potential resolution in that case, Defendant in this action will still be required to satisfy its obligations under FOIA, including justifying its withholdings. [Judicial Watch’s] lawsuit simply does not vanish if and when the House Committee suit is resolved.” 

And we conclude: 

[Judicial Watch] has a statutory right to the requested records and to have Defendant’s denial of Plaintiff’s FOIA request reviewed by this Court. [Judicial Watch’s] claim is now ripe for adjudication, and [Judicial Watch] is prepared to brief the issues. Defendant simply seeks to delay the date that it must justify its claims of exemption. Defendant has not demonstrated why [Judicial Watch’s] rights should be immoderately and oppressively delayed; it has only disparaged the public’s right to request records of its government. For the foregoing reasons, [Judicial Watch] respectfully requests that Defendant’s request for an indefinite stay of the proceedings be denied.

By way of review, Fast and Furious was a DOJ/Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) “gunrunning” operation in which the Obama administration reportedly sold guns to Mexican drug cartels in hopes that they would end up at crime scenes.

Congressional investigators, led by Rep. Darryl Issa (R-CA), Chairman of the House Oversight and Government Reform Committee, have fought to secure records related to the Fast and Furious program, but the DOJ continues to withhold responsive records from disclosure. On June 20, 2012, President Obama made a highly controversial decision to assert Executive Privilege in order to shield the DOJ’s Fast and Furious records from disclosure. Executive privilege is reserved to “protect” White House records, not the records of federal agencies, which must be made available, subject to specific exceptions, under the FOIA.

The president’s assertion of executive privilege came just hours before the House Oversight and Government Reform Committee voted to hold Attorney General Eric Holder in contempt of Congress for failing to respond to congressional subpoenas for Fast and Furious records. On June 28, 2012, Congress voted 255-67 to hold Holder in contempt. (A number of Democrats joined the vote, while other Democrats, endorsing lawlessness, walked out in protest.) A second vote, 258-95, authorized the pursuit of records through civil litigation in the courts. Moreover, documents uncovered by CBS News seem to indicate that Holder may have perjured himself during congressional testimony, detailing what he knew about Fast and Furious and when he knew it.

It is beyond ironic that the Obama administration has initiated an anti-gun push as it seeking to keep secret key documents about its very own Fast and Furious gun-walking scandal. 

Getting beyond the Obama administration’s smokescreen, this lawsuit is about a simple principle: the public’s right to know the full truth about an egregious political scandal that led to the death of at least one American and countless other people. The American public is sick and tired of the Obama administration trying to rewrite the FOIA and other laws in an effort to protect this president and his appointees. Americans want answers about Fast and Furious killings and lies.

Judicial Watch separately filed a FOIA lawsuit against the ATF seeking access to records detailing communications between ATF officials and a White House official regarding Fast and Furious.