Fast and Furious Court Victory for Judicial Watch

By Tom Fitton | February 23, 2016 | 5:06 PM EST

Former U.S. Attorney General Eric Holder (AP Photo/J. Scott Applewhite)

This is an important story about Judicial Watch’s complicated and complex investigation into the Obama administration’s deadly Operation Fast and Furious scandal.  And this is one story that should be shared far and wide.

Earlier this week Judicial Watch was pleased to announce that we scored a victory in the United States Court of Appeals for the District of Columbia Circuit regarding a September 5, 2013, Freedom of Information Act (FOIA) lawsuit for all records of communications between the U.S. Department of Justice (DOJ) and the House Committee on Oversight and Government Reform on settlement discussions in the Committee’s 2012 contempt of Congress lawsuit against former Attorney General Eric Holder. The contempt citation stemmed from Holder’s refusal to turn over documents to Congress related to the Operation Fast and Furious gunrunning scandal.  The appeals court decision was issued last week, on February 12.

On June 28, 2012, Holder was held in contempt by the House of Representatives over his refusal to turn over records explaining why the Obama administration may have lied to Congress and refused for months to disclose the truth about the gunrunning operation in which the Obama administration allowed weapons to “walk” across the border into the hands of Mexican drug cartels, directly resulting in the death of U.S. Border Patrol Agent Brian Terry and countless Mexican citizens.  The House vote against Holder marked the first time in U.S. history that a sitting Attorney General was held in contempt of Congress.

A week before the contempt finding, to protect Holder from criminal prosecution and stave off the contempt vote, President Obama asserted executive privilege over the Fast and Furious records that the House Oversight Committee had subpoenaed eight months earlier.

Judicial Watch filed a FOIA lawsuit on September 12, 2012, for all of the records the Obama White House was withholding from the House of Representatives under its June 20, 2012, executive privilege claims.  The House had been separately litigating to obtain the records before U.S. District Court Judge Amy Berman Jackson.  We figured, correctly it turns out, we’d have better success in court than the hapless Congress.

Initially, the House lawsuit stalled our litigation.  On February 15, 2013, U.S. District Court Judge Bates stayed the Judicial Watch case, in part to allow ongoing settlement discussions between the DOJ and the House Committee to continue.

Judicial Watch was skeptical that the “settlement discussions” were serious and that they were merely an excuse to keep the records secret to protect Holder and the Obama administration from any Fast and Furious fallout.  Judicial Watch sought records about the alleged settlement talks and sued in federal court for them in September 2013.  As last week’s appellate decision details, U.S. District Court Judge Richard Leon ruled that a statement Judge Jackson made in the House lawsuit was a lawful reason to withhold the documents from the public:

“I don’t know what you said. I don’t want to know.” – was “an explicit statement from Judge Jackson instructing the parties to keep the substance of their settlement discussions private,” so “there can be no doubt that there was a valid court-imposed restriction prohibiting disclosure.”

The U.S. Court of Appeals concluded that Judge Leon erred in concluding that Judge Jackson’s comment – about not wanting to know about the settlement – should be construed as an order to seal the records requested by Judicial Watch:

“[T]here is no extrinsic evidence that was what the judge intended; indeed, that concern is nowhere mentioned in the record in this case, and it is equally plausible that Judge Jackson wanted simply to preserve her objectivity in case she ultimately were to preside over a trial. Nor has the Department pointed to extrinsic evidence, such as information that the district court customarily protects the confidentiality of settlement discussions before a case is referred to mediation, that supports its preferred reading.

“Accordingly, the intended effect of Judge Jackson’s order is ambiguous. An ambiguous court order does not protect a record from disclosure pursuant to the FOIA.”

The appeals court directed the issue be taken up again by the lower courts:

“At oral argument, Judicial Watch raised no objection to our remanding the case for clarification and acknowledged that Judge Jackson’s explanation would be dispositive.  Accordingly, we vacate the judgement for the district court and remand this matter to Judge Leon in order to give the Department an opportunity to seek clarification from Judge Jackson regarding the intended effect and scope of her order.”

The “mediation” and the House effort to obtain the Fast and Furious documents went nowhere until after Judge Bates in the Judicial Watch litigation ruled that the Obama Justice Department had to disclose directly to Judicial Watch information that Congress was seeking.

After a lengthy 16-month delay of its lawsuit because of this “mediation,” Judicial Watch finally obtained a July 18, 2014, ruling from Judge John D. Bates that lifted a stay of our open records lawsuit and ordered the production of a Vaughn index by October 1, 2014.  Judge Bates noted that no court has ever “expressly recognized” President Obama’s unprecedented executive privilege claims in the Fast and Furious matter.  Typically, a Vaughn index must: (1) identify each record withheld; (2) state the statutory exemption claimed; and (3) explain how disclosure would damage the interests protected by the claimed exemption.

On September 9, 2014, Judge Jackson, citing Judicial Watch’s separate success, ordered the Justice Department to produce information to Congress by November 3, 2014.

On September 23, Judge Bates then denied the DOJ’s request that it be given more than a month, until November 3, to produce the Vaughn index.  As Judge Bates noted: “at best, it means the Department has been slow to react to this Court’s previous [July 18, 2014] Order.  At worst, it means the Department has ignored that Order until now.”

Holder announced his resignation two days after Judge Bates denied a Justice Department request it be given over an extra month to produce the Fast and Furious information.  JW took due credit for forcing Holder out of office, noting it was “no coincidence that Holder’s resignation comes on the heels of another court ruling that the Justice Department must finally cough up information about how Holder’s Justice Department apparently lied to Congress and the American people about the Operation Fast and Furious scandal, for which Holder was held in contempt by the House of Representatives.”

I hope the latest Judicial Watch court victory over the Obama gang in the Fast and Furious scandal is some solace to the families of Brian Terry and the families of countless other Fast and Furious victims.  The body count, thanks to Barack Obama’s Fast and Furious gunrunning operation, will only rise over time – so every bit of accountability Judicial Watch can claw from the courts is well worth the effort.

You can see how this latest court victory was the result of a remarkable and tenacious effort by our legal and investigative teams.  And the appellate ruling is one of a string of victories.

Judicial Watch’s FOIA litigation also forced President Obama to retreat from his abusive assertions of executive privilege.  (It probably won’t surprise you to learn that separate litigation by the House for the Fast and Furious documents continues, with Judge Jackson ruling last month against Obama’s assertions of executive privilege.)

In 2011, then-Attorney General Holder admitted that guns from the Fast and Furious scandal are expected to be used in criminal activity on both sides of the U.S.-Mexico border for years to come.

Holder was right on that, at least.  In 2014, Judicial Watch announced that, based upon information uncovered through a public records lawsuit, the U.S. Congress confirmed that an AK-47 rifle was used in a July 29, 2013, gang-style assault on an apartment building that left two people wounded.  Judicial Watch litigation also obtained crime scene photos of the Phoenix attack that raised new cover-up questions.  Despite the fact that the crime scene photos clearly revealed a serial number that shows that the AK-47 used in the commission of the crime was a Fast and Furious weapon, the City of Phoenix and Department of Justice failed to turn over the incriminating photos to Congress, despite longstanding requests for such information.  According to Judicial Watch sources, investigators at the scene and subsequently knew that the AK-47 was a Fast and Furious weapon.

Just last month, a Fast and Furious weapon was found at the hideout of infamous Mexican drug lord Joaquin “El Chapo” Guzman.  The .50 caliber rifle reportedly is capable of taking out a car or a helicopter.

This decrepit city may yawn at the deaths of Brian Terry and myriad other innocents (here and in Mexico) caused by this administration’s Fast and Furious insanity, but Judicial Watch is still on the case, our litigation will continue and I tell you that we’re still investigating new leads on the issue.

Tom Fitton is the President of Judicial Watch, the public interest group that investigates and prosecutes government corruption. Founded in 1994, Judicial Watch seeks to ensure government and judicial officials act ethically and do not abuse the powers entrusted to them by the American public.