This week, Judge Amy Berman Jackson issued an important opinion in Oversight Committee v. Holder, ongoing litigation in federal court in the District of Columbia. After the House of Representatives held Attorney General Holder in contempt, it brought this civil action seeking judicial enforcement of congressional subpoenas issued in the investigation of problematic gun trafficking investigations along the southwest border (commonly referred to as Operation Fast and Furious). The dispute centers on certain categories of documents withheld by the Department of Justice that are the subject of President Obama’s assertion of executive privilege.
In her ruling, Judge Jackson ordered that the Department produce an executive privilege log analogous to an attorney-client privilege log in regular civil litigation. Based on Oversight Committee Chairman Darrell Issa’s press release and initial headlines, it sounded like an unabashed victory for the legislative branch. However, the opinion presents a much more complicated picture. The court’s Solomonic reasoning will cause some consternation at both ends of Pennsylvania Avenue. It also raises a number of important questions.
In the framing sentence of the six-page opinion, Judge Jackson writes: “The precedent binding on this Court establishes the existence of a deliberative process privilege as a form of executive privilege, but it also sets forth the prerequisites that must be established before that privilege can be recognized.” (p. 1). Her opinion relies heavily on the D.C. Circuit precedent, In re Sealed Case (Espy), 121 F.3d 729 (D.C. Cir. 1997). She dismisses both cross-motions for summary judgment without prejudice and instead seeks to narrow, and delay, the dispute by means of the privilege log production and analysis.
In practical terms, production of a log pierces the Executive Branch firewall. This will no doubt raise hackles in the Justice Department and the White House. Production of a log will be an arduous task because: (1) the congressional requests were staggeringly broad and (2) the dispute largely relates to documents that were generated after Congress started its investigation, after the media started to report on allegations of problematic investigative tactics, and long after the those controversial tactics—which dated back to the Bush Administration—had been initiated. Therefore, there are likely to be a whole lot of Executive Branch documents and people involved in reaction and deliberations to these various congressional accusations. Thus, the discussion between the Department and the Committee has been about categories of documents rather than specific documents. The order will require the Department to shift gears to the document level, and with a tight October 1st deadline.
In fact, the Justice Department will have to shift to a sub-document level. In a significant legal victory for Congress, the court held that “any segregable factual sections of documents that do not fall under the deliberative process privilege, see In re Sealed Case, 121, F.3d at 740, are also subject to the subpoena.” Segregability will add to the premium, as discussed below, on the definitional scope of the legal points of reference: the relevant “facts” and “decisions.”
Moreover, the court’s requirement that the Department furnish a privilege log to Congress presents a political problem that is not present in normal litigation. Disclosure of the participants to conversations but not the substance is the traditional format of attorney-client privilege logs, but Chairman Issa and his staff have a history of using innuendo about the mere existence of a communication as a suggestion of misconduct. Chairman Issa and his colleagues have made several unsubstantiated accusations, including characterizing limited background conversations about field experiences between an ATF agent and an NSC staffer as evidence of White House involvement in the authorization and management of a remote Arizona field operation led by the Bureau Alcohol Tobacco, Firearms and Explosives, arguing that the invocation of Fifth Amendment rights by an Assistant U.S. Attorney (accused of wrongdoing by Chairman Issa) gave rise to an inference of criminal conduct, charging senior Justice Department officials with notice of problematic tactics due to top-line briefings that were analogous to those Chairman Issa had received, and suggesting the assertion of executive privilege itself demonstrated White House involvement in either “gun walking” or a cover-up. One can readily imagine the coming congressional characterization of entries in the privilege log.
While obtaining some practical and legal victories, Congress lost its most prized legal argument. In Holder, Congress advanced a long-held institutional view that the deliberative process privilege was categorically unavailable to the Executive Branch as a defense against a congressional subpoena. The House brief included a section titled, “Deliberative Process Privilege…Does Not Apply to Congressional Subpoenas.” Congress argued that deliberative process privilege is derived from the common law and, unlike presidential communications privilege, does not enjoy constitutional status. Thus, deliberative process privilege is akin to attorney-client privilege, which Congress may choose to honor or disregard on a case-by-case basis. The Executive Branch has advanced an equally deeply held view to the contrary, that the deliberative process privilege is one legitimate, constitutionally-grounded component of an umbrella doctrine of executive privilege. In the end, Judge Jackson held that:
…the Court rejects the Committee’s suggestion that the only privilege the executive can invoke in response to a subpoena is the Presidential communications privilege.
Finally, the court’s ruling raises a few other practical questions. If only “predecisional” information is privileged, the “decision” at issue becomes critical. If “government misconduct” militates toward disclosure, what is the relevant allegation of misconduct? Surely the court would include the underlying ATF task force investigative tactics and perhaps the crafting of the February 4, 2011 letter to Sen. Grassley that contained inaccuracies. However, does further Executive Branch decision-making in response to the congressional investigation that Congress views as obstructionist constitute legally cognizable “misconduct” for purposes of privilege analysis? That is a much more sensitive question because it would create an opportunity for legal bootstrapping by Congress and would invade the “separation” in separation-of-powers.
As I have previously argued, not all deliberative processes are equal. Some are rooted in non-constitutional interests and others, due to their nature, derive from the structure of the Constitution itself. All of them take on a greater constitutional character once the President has invoked Executive Privilege. As such, I have grave concerns about judicial resolution of categorical questions such as the availability, or not, of deliberative process privilege. Congress and the Executive have tended to state their positions in categorical terms. In this case, the Executive Branch already lost its chief categorical argument against the justiciability of the dispute. Now Congress has lost one of its categorical articles of faith.
I also struggle with how a court could properly weigh congressional need for information against executive confidentiality interests because both of those calculations are inherently political. For these reasons, with limited exceptions, courts have been loath to take the political branches’ invitations to establish categorical precedent. It is becoming clear that Judge Jackson, too, is sensitive to these concerns.