By Margot Cleveland • The Federalist
For six years, the House Committee on Oversight and Government Reform has fought for the release of documents related to Operation Fast and Furious — the botched gun-running sting that put nearly 2,000 firearms into the hands of criminals and Mexican drug cartels members, including the semi-automatic rifle used to kill Customs and Border Patrol Agent Brian Terry.
Attorney General Jeff Sessions committed Wednesday to release the requested documents and to “conduct a new search” of government databases and to provide previously withheld responsive documents or to “certify the completeness of the preceding production.” The Trump Administration’s promise to redo the search of government files likely sought to assuage the House Oversight Committee, which said during litigation with the Obama administration that it did not have “sufficient trust” in the Department of Justice to take the agency’s word it had complied.
“The Department of Justice under my watch is committed to transparency and the rule of law,” Sessions said in a statement announcing the DOJ’s conditional settlement agreement with the House Oversight Committee. “This settlement agreement is an important step to make sure that the public finally receives all the facts related to Operation Fast and Furious.”
The Obama Administration had previously withheld the requested documents, leading the House to hold then-Attorney General Eric Holder in contempt of Congress on June 28, 2012, “marking the first time in American history that the head of the Justice Department has been held in contempt by Congress.”
In August 2012, Holder and the Obama Administration continued to ignore the Congressional subpoenas, so the House sued the DOJ in a Washington, D.C., federal district court in August 2012. Judge Amy Berman Jackson ordered the DOJ to release select documents, and the Obama Administration later turned over more than 20,000 pages to the House Oversight Committee to comply with that court order.
While a win for the House Oversight Committee, Jackson’s ruling was an extremely narrow victory: The House had sought to enforce the subpoenas in total, but Jackson limited her ruling to only a subset of post-February 4, 2011, documents — those relevant to the committee’s attempt to find out whether the DOJ “deliberately attempted to obstruct” the investigation by lying to the committee or some other means. Jackson also allowed the DOJ to withhold or redact portions of the documents based on various claimed executive privileges.
The Feb. 4, 2011, date proved significant because that was the day Assistant Attorney General Ronald Weich sent a letter to Republican Sen. Chuck Grassley denying “that straw purchasers were permitted to transport firearms into Mexico without being interdicted.” Ten months later, the DOJ sent Republican Rep. Darrell Issa another letter officially retracting that denial and stating that investigators had in fact allowed the weapons to leave the country. The House Oversight Committee expanded its investigation into the circumstances surrounding Weich’s inaccurate statements and the DOJ’s response.
While the documents Jackson ordered produced were important, the House Oversight Committee sought full compliance with the congressional subpoenas, including all responsive documents created on or after Feb. 4, 2011, without redaction, and accordingly appealed the district court’s 2016 decision to the D.C. Circuit Court of Appeals.
The appellate court originally scheduled oral arguments for March 19, 2017, but shortly before President Trump’s inauguration, the House Oversight Committee asked the appellate court to put the case on hold to allow time for the Committee and the incoming administration to figure out if they could reach an agreement “on resolving or narrowing the issues under review.” The D.C. Circuit has kept the House Oversight Committee’s appeal on hold since, with the parties filing regular notices to the court that negotiations were oncoming.
Wednesday’s conditional settlement agreement — if approved by the courts — will provide the House Oversight Committee with documents far exceeding those ordered by Jackson. In fact, the breadth of the 6-page, single-spaced settlement agreement seems to far surpass what the House Oversight Committee could have hoped to achieve on appeal.
For instance, the conditional settlement agreement requires the DOJ to conduct a new search of the email sent folders for Holder, Weich, Gary Grindler, James Cole, Lanny Breuer, Jason Weinstein, Tracy Schmaler, Lisa Monaco, Mythili Raman, Stuart Goldberg, Matt Axelrod and Steven Reich, employing “all of the original search terms used,” by the prior administration, as well as the following search terms:
Grassley!, Issa!, “our guy,” Cummings!, Leahy!, Chairman!, OGR, COGR, HOGR, T III, T-III, wiretap, AZ gun trafficking case, AZ, Brian Terry, “transcribed interview,” “agency counsel,” contempt, subpoena, transcript, “executive privilege,” “memos on memos,” “deliberative process,” deliberative, “fair compilation,” “representative sample,” “priority doc!”
The conditional settlement agreement further requires the DOJ to conduct a new search for “all documents” those individuals created, sent or received, and to do the same for any documents by anyone in the Executive Office of the President that “concern or relate to” any meeting between the named individuals. In addition, the settlement requires the search on documents by “any person employed in the White House Counsel’s Office that occurred between June 12, 2011, and June 26, 2012,” concerning the DOJ response to the Fast and Furious investigation, with some limitations.
While it is impossible to know whether the new and additional searches will reveal anything untoward, the specificity included in the conditional settlement agreement indicates that the House Oversight Committee has found some threads within the already produced documents hinting at a smoking gun.
It will be some time, however, before we know the results of the Congressional investigation that is now into its eighth year, because the DOJ demanded safeguards in the conditional settlement agreement to prevent leaks: The Committee agreed to store the documents exclusively on a computer not connected to either the internet or the House computer network, or on a removable digital media that will be kept in a locked container. The committee also agreed to give the DOJ seven-days’ notice prior to releasing any newly unredacted material.
In exchange, the House Oversight Committee agreed to seek “vacatur of the District Court’s orders,” which would erase the lower-court’s conclusion that the House Oversight Committee had standing and a valid cause of action to enforce a Congressional subpoena. This agreement preserves the executive branch’s ability to challenge future litigation brought by the legislative branch. The judicial branch would have to agree to this tack, but given that the D.C. Circuit let the House Oversight Committee’s appeal linger for more than a year, the judges will likely be happy to avoid the fray.
Eric Holder and his team, though, might not be so thrilled.