Deal near between Holder, House on Fast & Furious contempt charges?

posted at 10:01 am on January 30, 2013 by Ed Morrissey

The Obama administration’s intransigence on recess appointments gave the judiciary an opportunity to finally rule on the practice — and the White House lost a huge legal battle that would effectively handcuff Barack Obama to the Senate for the next four years on appointments. I’m not too surprised to see that they may not want to take chances again, this time on the reach of Congressional contempt charges:

A deal may be near in the Operation-Fast-and-Furious-related dispute that led the House of Representatives to cite Attorney General Eric Holder for contempt last year.

U.S. District Court Judge Amy Jackson was set to hold a key hearing next week in the lawsuit the House filed seeking to enforce its subpoena for records of how the Justice Department responded to Congressional inquiries about the Bureau of Alcohol, Tobacco, Firearms and Explosives gunrunning investigation that may have resulted in as many as 2000 weapons flowing to Mexican drug cartels.

However, both the Justice Department and the House asked Jackson Tuesday to put the scheduled hearing off for more than two months as the two sides try to work out a deal that could obviate the need for the lawsuit.

The judge postponed the next hearing until April 24th.  That seems like a long time — almost a full month longer than requested — but the scope of the subpoena is extensive.  If the Department of Justice wants to start cooperating with the House, they will probably need to negotiate on a document-by-document basis.  That will take quite a while before the House can determine whether Holder is serious about transparency or taking them for a slightly longer ride.

Just as with the recess-appointment lawsuit, though, both sides risk losing long-term status in a lawsuit.  Previous subpoena disputes have almost all been settled before judicial precedent could be set.  That allows both sides to argue the virtues of their positions in the political realm, which is what the judiciary traditionally prefers.  If both sides push this dispute past a district court into the appellate level, the decision will set firm precedent on the powers and protection of the other two branches of government vis-a-vis the other — with the potential outcome of disaster for one or the other, a disaster that could last centuries.  As it stands, this is almost the political equivalent of Mutually Assured Destruction.

Obama didn’t learn that lesson, and now he has allowed the precedent in the DC Circuit (where the federal government operates in a legal sense as well as an actual sense) that limits recess appointments to only vacancies that first occur during formal intersession Congressional recesses, which all but eliminates recess appointments at all.  That precedent stands until the Supreme Court overturns it.  It looks like the White House has belatedly found the wisdom of keeping those kinds of questions away from the judicial branch, especially when it comes to subpoenas.


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