Federal Court Orders Obama DOJ to Turn Over All Withheld Fast and Furious Documents

By Tim Brown

Government watchdog group Judicial Watch won a major victory in federal court earlier this month, in which the US District Court for the District of Columbia ordered the Obama Justice Department to turn over information requested by Judicial Watch in a Freedom of Information Act request concerning Operation Fast and Furious. Judicial Watch had requested all of the documents that Obama attempted to withhold from Congress under claims of executive privilege, for which ultimately Attorney General Eric Holder was found in contempt of Congress.

According to Judicial Watch:

The ruling by U.S. District Court Judge John D. Bates lifted a lengthy 16-month delay of this open records lawsuit.  This order forces the Obama DOJ, for the first time and by October 1, 2014, to 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 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. In September 2012, Obama asserted executive privilege over the documents. In the July 2014 opinion overruling the Obama Justice Department’s request for an almost indefinite hold on Judicial Watch’s legal right obtains 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 suggested 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.

Former CBS reporter Sharyl Attkisson, who was one of the few investigative journalists in the mainstream media to delve into Obama’s scandals, also has many long-standing Freedom of Information Act requests concerning Operation Fast and Furious.

She writes, “The Justice Department has long claimed that allowing the Judicial Watch lawsuit to move forward would interfere with its ongoing lawsuit in which the House Oversight Committee is suing for the same documents.”

According to Attkisson, because of the court’s ruling “the Department of Justice must turn over an index describing all of the material it’s been holding back since September of 2012.”

The “Vaughn Index,” as it is referred to, must be turned over by October 1, 2014. According to the Office of Government Information Services, this index “is a document that agencies prepare in FOIA litigation to justify each withholding of information under a FOIA exemption.”

This 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.

It’s a great victory, and in many ways it may solve the dispute between Congress and the Obama administration, and more importantly, it advances the public interest,”Judicial Watch President Tom Fitton told The Daily Caller.

“We knew — as a result of filing the request and that if we had to file a lawsuit –that we would at least get a listing of what documents were an issue and details about those documents that would provide information that the public did not have and that Congress was specifically seeking,” he said.

The only question now is what court will Obama seek to appeal to so that he can get the ruling overturned. Perhaps, if there is no further ruling the American people will finally get to see the documents that we’ve been waiting years to see and possibly they would prove beyond a shadow of a doubt the premeditated lawlessness, not incompetence, of this administration with regards to gun trafficking and arming Mexican drug cartels.