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Legal Analysis

Barack Obama’s Revenge? Republican Court Victories May End Up Giving House Democrats Vast Power

Republican court victories against the Obama administration may set the stage for House Democrats to obtain key documents under the subpoena authority of various congressional oversight committees. Access to such documents would likely prove frustrating and potentially devastating to some members of the Trump administration.

BuzzFeed News’ Zoe Tillman cites the Operation Fast and Furious drama–and resulting litigation–as one area where conservatives may end hoisted by their own petards.

Stylized as Oversight Committee v. Lynch, the case against former attorney general Loretta Lynch ultimately ended with the Obama Deparment of Justice (DOJ) being forced to produce a number of disputed documents after formal assertions of executive privilege by the 44th president.

Judge Amy Berman Jackson okayed the release of over 5,000 unique documents related to internal administration deliberations about how to respond to combative congressional investigators and media requests for information regarding various failed gun trafficking investigations undertaken by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) which began during the first year of the Obama presidency.

This ruling was fairly limited, however, and in the process of ruling for House Republicans and against Obama’s DOJ, Berman reasserted an additional form of executive power and privilege. Writing in Just Security, legal analyst Andy Wright notes one upshot of Berman’s opinion that augured well for the executive branch:

Judge Jackson specifically held that the deliberative process privilege also applies to deliberations about how to respond to media inquiries or congressional requests. Congress had argued that the privilege is confined exclusively to policy deliberations. Rejecting that argument, the opinion notes “the Court holds that documents withheld by defendant that reveal the Department’s internal deliberations about how to respond to press and Congressional inquiries into Operation Fast and Furious are protected by the deliberative process privilege.”

Berman’s opinion was a win for House Republicans in part because the Obama administration had already released some information about Fast and Furious and in part because she found that releasing additional documents would only compound the Obama administration’s own self-inflicted wounds.

Regardless of the limited victory in the Berman opinion, the Trump administration is seemingly quite spooked by the ruling anyway–and the potential it holds for House Democrats to get their hands on internal White House deliberations. So spooked, in fact, that they rushed together a proposed settlement agreement between the DOJ and House Oversight Committee in order to vacate Berman’s prior rulings. Berman wasn’t having it.

On October 22, Berman dismissed the idea out-of-hand:

At the end of the day, the parties’ emphasis on the fact that they have come to an agreement that the Court should welcome rings hollow, and their request that the Orders be vacated because of the settlement and for no other reason is not persuasive…the only real change in circumstance since the filing of the appeal has been the change in political leadership at the Department of Justice in the wake of the Presidential election. This suggests that the primary, if not the sole, objective of the conditional settlement and the pending motion is to erase the Court’s prior rulings.

So, Berman’s rulings are out there. They’re not going anywhere for now–if ever. As Berman is a judge at district court–the lowest level of federal court–those rulings are not mandatory precedent for any other federal court, of course, but they are likely to be viewed as persuasive precedent. And, again, Trump’s own White House tried and failed to have them completely erased from the record.

It’s not just the Oversight Committee that Trump has to worry about. House Republicans, emboldened by their Fast and Furious run, moved to increase subpoena authority for several additional House committees. Those powers will now be swiftly inherited by the incoming Democratic majority.

If House Democrats are serious about drowning the Trump White House in subpoena paper–and all indications are they Democrats are quite serious about doing this–the Fast and Furious affair might well be considered a form of judicial blowback for the GOP.

[image via Olivier Douliery-Pool/Getty Images]

Follow Colin Kalmbacher on Twitter: @colinkalmbacher

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