Amid the contempt and privilege fight over the Mueller report in Congress on Wednesday, the House Oversight and Government Reform Committee and the Justice Department are trying to end another major battle over executive privilege that has lasted years.
The Democrat-led House and the Justice Department announced to a federal appeals court in Washington on Wednesday that they had reached a settlement in the Operation Fast and Furious court case, which began as an Obama-era privilege standoff over a subpoena from Congress.
It led to the then-Republican-controlled House holding then-Attorney General Eric Holder in contempt in 2012, yet the litigation dragged on. A previous attempt last year to end the court fight was stopped by a trial-court judge, after the two sides sought to throw out her opinions in the case because of how they could play into future privilege fights.
The long-running case was a persistent reminder in recent years of how long a court fight over privilege can take – especially on the same day a congressional committee voted to approve holding now-Attorney General William Barr in contempt for failing to turn over the full unredacted Mueller report, and the White House asserted executive privilege over the report’s entirety to stymie Congress. The Mueller report clash appears to be headed for court.
In the Fast and Furious case, the House was seeking documents in response to a subpoena regarding an ill-fated program that sought to track guns that federal agents allowed into Mexico. The Justice Department initially asserted privilege over all the documents, and even after years of litigation still refused to give Congress some information about the program.
The House and the Justice Department had previously told the court they were in settlement negotiations.
The two sides reached the settlement on April 10 this year, they said in Wednesday’s court filing.
The Justice Department says it still disagrees with some of the federal court’s opinions in this case. The court had ordered the department to produce some documents.
The House stated in the settlement that it, too, still disagrees with the prior court’s orders, “including its conclusion that the deliberative process privileged may be asserted against Congress,” the signed settlement agreement said.
Both sides even carved out in their newly proposed settlement the ability to continue to fight over privilege issues.
“The Parties agree that because subsequent developments have obviated the need to resolve those issues in an appeal in this case, the District Court’s holdings should not in any way control the resolution of the same or similar issues should they arise in other litigation between the Committee and the Executive Branch, and hereby waive any right to argue that the judgment of the District Court or any of the District Court’s orders or opinions in this case have any preclusive effect in any other litigation,” the settlement read.
The settlement has not yet been approved by the federal court of appeals.