The Justice Department's own public disclosures undercut the president's privilege claim, Judge Amy Berman Jackson ruled.
By Josh Gerstein
01/19/16 01:16 PM EST
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A federal judge has rejected President Barack Obama's assertion of executive privilege to deny Congress access to records pertaining to Operation Fast and Furious, a gunrunning probe that allegedly allowed thousands of weapons to flow across the border into Mexico.
U.S. District Court Judge Amy Berman Jackson ruled Tuesday that the Justice Department's public disclosures about its response to the so-called "gun walking" controversy undercut Obama's executive privilege claim.
"There is no need to balance the need against the impact that the revelation of any record could have on candor in future executive decision making, since any harm that might flow from the public revelation of the deliberations at issue here has already been self-inflicted," Jackson wrote. "The Department itself has already publicly revealed the sum and substance of the very material it is now seeking to withhold. Since any harm that would flow from the disclosures sought here would be merely incremental, the records must be produced."
Jackson said she wasn't questioning the propriety of Obama's claim of privilege, but ruling that the claim could not be sustained in view of other information the Justice Department had released on the topic, chiefly an Office of Inspector General report released in September 2012.
"This ruling is not predicated on a finding that the withholding was intended to cloak wrongdoing on the part of government officials or that the withholding itself was improper," the judge wrote.
The standoff over the records led to a House vote in June 2012 holding then-Attorney General Eric Holder in contempt of Congress for failing to turn over the records. The House later initiated a lawsuit to try to force disclosure of the files. The case was repeatedly delayed in an unsuccessful effort to broker a settlement.
The administration initially asked Jackson to throw out the suit altogether, arguing that the legislative and executive branches should use their own methods to sort out the dispute. However, the judge ruled in 2013 that the fight was an appropriate one for the courts to resolve. She also rejected the administration's efforts to appeal the case at that time, before she issued a definitive ruling.
Jackson, an Obama appointee, left open the possibility in her ruling Tuesday that some of the disputed records could still be held back from Congress because they contain sensitive information on law enforcement techniques, implicate foreign policy concerns or discuss matters covered by attorney-client privilege.
The administration could appeal the ruling. Asked about the decision at a regular briefing for reporters Tuesday, White House press secretary Josh Earnest had no immediate comment.
A Justice Department spokeswoman said solely that the agency was "reviewing the decision."
Read more: http://www.politico.com/story/2016/01/judge-rejects-obamas-executive-privilege-claim-over-fast-and-furious-records-217970#ixzz3xpV7yDIU