Federal Court Orders Obama Administration to Release Fast and Furious Information

Judicial Watch has had tremendous success forcing the release of information from the Obama administration--especially records Congress has been unable to obtain: see Benghazi and the IRS scandals. And last week, we saw success regarding the scandal involving the Department of Justice (DOJ) and Operation Fast and Furious.

The DOJ has been under the microscope for stonewalling records related to the Operation Fast and Furious scandal, in which the Obama administration allowed guns to “walk” into the hands of Mexican drug cartels, ultimately leading to the deaths of U.S. Border Patrol Agent Brian Terry and countless Mexicans.

On July 18, 2014, the U.S. District Court for the District of Columbia ruled that the Obama DOJ must turn over to the organization a “Vaughn index” of all requested Operation Fast and Furious materials from the June 2012 Freedom of Information Act (FOIA) request and subsequent September 2012 FOIA lawsuit. We sought all of the documents the Obama White House was withholding from the House of Representatives under executive privilege claims.

The ruling by Judge John D. Bates lifted a lengthy 16-month delay of our open records lawsuit. And now the Obama DOJ, for the first time, must provide a detailed listing of all documents that it has withheld from Congress and the American people for years about the deadly Fast and Furious gun-running scandal. The court ordered production of the information by October 1. 

The DOJ opposed the Judicial Watch action, claiming it would interfere with the department’s continuing litigation with the House Oversight Committee concerning these Fast and Furious documents subpoenaed in October 2011. (You may recall back in September 2012, President Obama whisked in at the last minute to protect his Attorney General by asserting executive privilege over the documents.)

In the July 2014 opinion overruling the Obama Justice Department’s request for an almost indefinite hold on our legal right to obtain this information under the Freedom of Information Act, Bates said:

In the [February 15, 2013] order granting the stay, this court explicitly noted that the DOJ "does not seek, and the court will not award, an indefinite stay pending ultimate resolution of the House Committee litigation," and that "the benefits of delaying this case might well [become] too attenuated to justify any further delay...

Because many of the issues to be resolved in this case do not overlap with the 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.

In fact, the court took it one step further, suggesting that disclosing information to Judicial Watch might actually resolve the legal dispute now before Judge Amy Berman Jackson between the Obama administration and Congress:

True, nothing in the subpoena enforcement context of House committee would require DOJ to produce a particularized description of the withheld documents. … But this is a FOIA case, and since 1973, when Vaughn was decided, courts in this circuit have required agencies to justify their FOIA withholdings on a particularized basis. And doing so here will not prematurely expose or resolve the executive privilege issues ahead of Judge Jackson and the political branches; it will merely permit the parties and this Court to cull from the dispute any documents as to which a valid, non-executive privilege reason for withholding exists, thereby narrowing or perhaps even resolving the case.

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.

Judge Bates also noted no court has ever “expressly recognized” President Obama’s executive privilege claims that his administration is using to keep these documents secret from Congress and the American people.

A Vaughn index is, in essence, a report that describes the records the Obama administration is withholding. Each Vaughn index must: (1) identify each document withheld, (2) state the statutory exemption claimed, and (3) explain how disclosure would damage the interests protected by the claimed exemption.

In ordering the DOJ to provide Judicial Watch the Vaughn index, the Court ruled, “In this circuit, when an agency is withholding documents under exemption claims, courts require that the agency provide a Vaughn index so that the FOIA requester--at a distinct informational disadvantage--may test the agency’s claims.”

And that’s exactly what we are going to do--because the Obama administration is playing games with FOIA law, including the President himself.

In June 2012, President Obama improperly asserted executive privilege over Fast and Furious documents the House Oversight Committee had subpoenaed eight months earlier. Two days later, we filed our FOIA request. When the DOJ denied that request, we filed a FOIA lawsuit on September 12, 2012.

On February 15, 2013, Judge Bates stayed the case, in part to allow ongoing settlement discussions between the DOJ and the House Committee to continue. Judge Bates’ order lifted the stay after a lengthy July 18 hearing. Generally speaking, the documents at issue are about how and if the Obama administration misled Congress about the Fast and Furious matter.

Once again, Judicial Watch beat Congress to the punch in getting key information about another Obama scandal--this time, the Fast and Furious outrage. A federal court has ordered the Obama administration to produce information that could, for the first time, provide specific details as to who in the administration is responsible for Fast and Furious lies to Congress and the American people.

This is a battle that put Eric Holder in contempt of Congress, saw Nixonian assertions of executive privilege by Barack Obama, and a hapless Congress in face of all this lawlessness. Finally, we may get some accountability for Border Patrol Agent Brian Terry and the countless others murdered as a result of the program.

This Judicial Watch lawsuit for key Fast and Furious documents is one of several FOIA lawsuits Judicial Watch has filed in its effort to obtain information about the Fast and Furious scandal.

Most recently, on May 28, 2014, Judicial Watch sued the DOJ on behalf of ATF Special Agent John Dodson, who heroically blew the whistle on Operation Fast and Furious and was then subjected to an alleged smear campaign designed to destroy his reputation.

Congress tried to get this information by holding Holder in contempt and then engaging in a seemingly never-ending constitutional court battle, but Judicial Watch has the best odds of cracking this case through our FOIA lawsuit. 


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