In a ruling Monday night, U.S. District Court Judge Amy Berman Jackson turned down the Justice Department’s request to dismiss a lawsuit brought by the House Oversight and Government Reform Committee after President Barack Obama asserted executive privilege to prevent some records about the administration’s response to the “Operation Fast and Furious” gunrunning scandal from being turned over to Congress.
“This case presents the sort of question that the courts are traditionally called upon to resolve,” Jackson said in her 44-page decision, issued more than five months after lawyers argued the issue in her packed courtroom and more than a year after the House committee filed suit. “Dismissing the case without hearing it would in effect place the court’s finger on the scale, designating the executive as the victor based solely on his untested assertion that the privilege applies,” she wrote.
The decision does not immediately grant Congress access to the documents; it merely means that the administration must now defend it’s claim of executive privilege in court. Put another way: the Obama administration’s position was not just that it can cast executive privilege over any document it likes (presidential or not), but that the courts have no power to review that decision. It was as astonishingly broad claim of authority, so the only surprise is it took so long to issue a decision.
Moreover, the House of Representatives is likely to prevail on the merits as well, as John Hinderaker explains.