Justice Dept. Considers Appeal of Fast and Furious Ruling

The court ruling that kept alive the House Oversight Committee's lawsuit over the Fast and Furious gun program "implicates the constitutional separation of powers between the branches" and could be challenged on appeal, the U.S. Justice Department says in a newly filed court document. U.S. District Judge Amy Berman Jackson on Sept. 30 refused to dismiss the House committee's suit, which seeks the enforcement of a subpoena for information about how the Justice Department responded to congressional inquiries about the flawed firearms operation. The government has asserted executive privilege to shield certain documents from Congress. Justice Department lawyers had urged Jackson not to wade too far into the case, filed in August 2012, on the contention that Congress and the executive branch would ultimately resolve the dispute over documents. "Judicial restraint, not judicial intervention, is warranted," the department's legal team told Jackson last October. Jackson didn't sit on the sidelines. The judge said her ruling "simply rejects the notion that it is an unreviewable privilege when asserted in response to a legislative demand." Justice Department lawyers and attorneys for the House are now trying to hash out a schedule to allow the case to move forward in Washington's federal trial court. DOJ lawyers, including Erik Womack, said the government expects to make a decision by late November on whether to take the dispute to the U.S. Court of Appeals for the D.C. Circuit, according to a status report filed on Oct. 25. "This is an opinion that implicates the constitutional separation of powers between the branches," Justice Department lawyers wrote in the jointly filed court papers. The Justice Department's review of Jackson's ruling was "interrupted by the shutdown of government activities during the month of October," Womack said. Justice Department lawyers also said the lawyers in the case "should begin renewed mediation" to try to settle the dispute. Senior U.S. District Judge Barbara Rothstein earlier oversaw discussion between Justice Department attorneys and lawyers for House oversight. The House committee's attorneys, led by general counsel Kerry Kircher, don't have much interest in any further mediation. "While the Committee has the utmost respect for Judge Rothstein, its past experience has left it with the firm conviction that the Attorney General will use further court-ordered mediation for purposes of delay only," House lawyers wrote.

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