Brief to court: Reject House subpoena suit

Oct. 16, 2012 at 10:50 AM
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WASHINGTON, Oct. 16 (UPI) -- Federal courts lack authority to intervene in a House legal challenge of President Obama's claim of executive privilege, the U.S. Justice Department argues.

The Justice Department, in a brief filed Monday, argues Obama's decision not to comply with subpoenas issued by the House Oversight and Government Reform Committee in its investigation of the failed Fast and Furious gunrunning operation can't be reviewed by the judiciary.

"Whether a court should find an implied cause of action under the Constitution for the committee to sue in federal court to enforce its subpoena does not depend on whether Congress may investigate matters pertaining to its legitimate legislative authority ... or whether Congress may bring its own powers to bear to obtain the information it legitimately seeks. ... These matters are undisputed," the brief said. "The question hinges, instead, on whether the committee may obtain the assistance of the federal courts in enforcing its subpoena. This it cannot do."

Seeking a remedy through the courts would "short-circuit the constitutional design and threaten to alter permanently the relationship" among the executive, legislative and judicial branches of government, the brief said.

"Filing suit is far easier than mustering the votes necessary to cut appropriations, defeat legislation or override a veto, and is far less visible to constituents," the brief said. "A decision allowing the case to proceed would thus greatly diminish the political costs of inter-branch confrontation and reduce the incentive for Congress to evaluate and prioritize the demands of its myriad committees."

Resolving this matter through the courts "would be particularly disruptive in this case, where the executive branch has consistently indicated that it remains willing to work toward further accommodation," the brief said.

Soon after that Obama asserted executive privilege in June, the House voted to hold Attorney General Eric Holder Jr. in contempt of Congress for failing to turn over documents related to the Oversight Committee's inquiry into the Fast and Furious gun-running scandal.

One of the resolutions of contempt the Republican-led House voted against Holder authorized the filing of a lawsuit to enforce the committee's subpoena. A lawsuit was filed in July.

The brief provided information about exchanges between the Justice Department and the House committee over documents related to the panel's investigation of Operation Fast and Furious.

The brief also warned that by intervening in this case, the judiciary could be forced to inject itself in disputes between the "political" branches of government.

"Such an unmoored weighing of the interests of the political branches is one the courts are ill-equipped to make," the brief said.

Also, the committee's lawsuit to enforce the subpoenas goes against U.S. Supreme Court precedent, the brief said.

"That is a remarkable request in light of historical precedent and the harm that such an approach would cause to the separation of powers," the brief said.

By filing its lawsuit, the House committee decided it doesn't want to work within "the process of negotiation and accommodation" to resolve its dispute with the executive branch, the brief said.

The panel "would rather proceed ... to court in order to have the judiciary resolve the dispute for it, enmeshing the court in a political dispute requiring political judgments," the brief said. "That is not the approach, or a role for the judiciary that the Constitution provides and it is not one that this court should adopt."

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