Judicial Watch, Inc. v. DOJ, No. 12-1510, 2014 WL 3537866 (D.D.C. July 18, 2014) (Bates, J.)
Re: Request for records concerning congressional investigation of Operation Fast and Furious
Disposition: Granting in part and denying in part plaintiff's motion to lift stay put in place pending developments in another case and ordering DOJ to produce a Vaughn index of withheld materials.
- Litigation Considerations, Vaughn Index / Declaration: The court holds that "[b]ecause many of the issues to be resolved in this case do not overlap with House Committee, and because resolving those issues will not risk upsetting the delicate balance of powers in subpoena disputes between the political branches, the Court will require DOJ to produce a Vaughn index here." As background, the court explains that "[i]n 2011, the House Oversight and Government Reform Committee . . . issued a subpoena to the Attorney General of the United States, seeking documents related to a congressional investigation into a Bureau of Alcohol, Tobacco, Firearms and Explosives operation known as Operation Fast and Furious." "In response, President Barack Obama invoked executive privilege." "The House Committee filed suit, seeking to enforce its subpoena and to challenge the President's assertion of executive privilege; that case is pending before Judge Amy Berman Jackson, another judge in this district." "Soon after the President invoked executive privilege, [plaintiff] submitted a FOIA request for all records subject to that claim of executive privilege (in other words, for the very same records that are the subject of House Committee)." "This Court stayed the case in February 2013, in part 'to allow ongoing settlement discussions [to continue] and, if a full settlement is not reached, to let the House Committee court rule on the [then-pending] motion to dismiss.'" The court "now concludes that this case may proceed without interfering with House Committee or upsetting the delicate balance of power between the branches." "To fully resolve this FOIA dispute, absent any settlement, the Court will have to determine many issues logically antecedent to any constitutional question." "In House Committee, DOJ is refusing to produce any documents to the House Committee pursuant to a claim of executive privilege." "The parties are litigating whether that privilege claim was proper, whether it covers all the documents being withheld, and whether the House Committee may defeat that privilege." "Here, DOJ is withholding every document under FOIA Exemption 5." The court concludes that "much is left to do here before this Court would reach any issues being addressed in House Committee or in the negotiations between the political branches" because "this Court needs to consider the executive privilege issue in this case only if no other reason permits DOJ to withhold a particular document under FOIA." The court explains that "[t]o be clear, the Court is not ordering the release of any documents currently being withheld in this litigation or in House Committee." "To the extent DOJ argues that the mere production of the Vaughn index—not involving the release of any documents in dispute—would alter the historical balance of powers between the branches, any unbalancing would result from FOIA itself, a law passed by Congress and signed into law by the President, and which this Court cannot ignore forever."