Judicial Watch announced today that on September 23, 2014, the U.S. District Court for the District of Columbia ruled that by October 22, the Department of Justice (DOJ) must submit a “Vaughn index” listing Fast and Furious materials Judicial Watch sought in its June 2012 Freedom of Information Act (FOIA) request and subsequent September 2012 FOIA lawsuit (Judicial Watch v. Department of Justice (No. 1:12-cv-01510)). A Vaughn 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.
On July 18, Bates ordered the Department of Justice to produce the documents list by October 1. The ruling by U.S. District Court Judge John D. Bates denied a motion by the Obama DOJ that it be given until over an extra month, until November 3, to produce the Vaughn index. Judge Bates noted that the Justice Department’s request showed the Justice Department was, “at best, it means the Department has been slow to react to this Court’s previous [July 18, 2014] Order. At worst, it means the Department has ignored that Order until now.”
In its FOIA lawsuit, Judicial Watch sought all of the documents the Obama White House was withholding from the House of Representatives under its June 20, 2012, executive privilege claims. The House had been separately litigating to obtain the documents but had gotten nowhere until after Judge Bates ruled that the DOJ finally had to disclose the document information to Judicial Watch. On September 9, U.S. District Court Judge Amy Berman Jackson, citing Judicial Watch’s success, ordered the DOJ to begin producing information to Congress by November 3.
In denying the DOJ’s motion for an extension until the day before the November elections, Bates ruled, “The government’s argument for even more time is unconvincing,” and granted the government just 21 additional days to produce the Vaughn index to Judicial Watch.
Judge Bates cites three reasons for denying the Justice Department’s request and gave the agency until October 22 to produce the information – “and no further”:
The Department first points to Judge [Amy Berman] Jackson’s November 3 deadline in House Committee [lawsuit for DOJ Fast and Furious documents] … But this misreads Judge Jackson’s opinion. As that court reasoned, ‘[s]ince the deadline in Judicial Watch was set first, it makes sense for defendant to complete that effort and then turn his attention to the list that is due in this case’ … This rationale counsels against dramatically shifting the goalposts in this case.
The government argues next that the sheer volume of documents involved in this case requires additional time to produce a Vaughn index, and it relies on the declaration testimony of Allison Stanton, a Director of E-Discovery at the Department of Justice, to substantiate this claim … She produced her declaration as part of the House Committee case, and her testimony describes the Department’s difficulties in responding to the order in that case … Nowhere does Stanton mention the present FOIA litigation or this case’s (much less onerous) Vaughn index requirement.
Finally, the government argues that it must devote significant numbers of attorneys to this matter if it hopes to comply with the current Vaughn index deadline … But the Department has known about its Vaughn index obligations since July 18, 2014 … At best, it means the Department has been slow to react to this Court’s previous Order. At worst, it means the Department has ignored that Order until now.
Judge Bates ruled:
[S]eventy-five days—plus another twenty-one, based in part on Judicial Watch’s consent—is enough time for the government to prepare the index that this Court has ordered, given that this matter has been pending for over two years. The Court will therefore extend the Department’s Vaughn index submission deadline to October 22, 2014—and no further.
“The Obama administration failed to game the courts and now will have to account for its Fast and Furious lies. Two federal courts have now rejected Eric Holder’s election-related ploy to keep this information from the American people,” said Judicial Watch President Tom Fitton. “This is a battle that put Eric Holder in contempt of Congress, saw Nixonian assertions of executive privilege by Barack Obama, and a hapless Congress in the face of all this lawlessness. This latest court ruling shows again that Judicial Watch’s independent investigations and lawsuits are more effective than Congress and the rest of the media. We are pleased we may get some accountability for Border Patrol Agent Brian Terry and hundreds of others who lost their lives as a result of Obama’s Fast and Furious program.”
Operation Fast and Furious was a Justice Department/Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) “gun-running” operation in which the Obama administration allowed guns to go to Mexican drug cartels in hopes that they would end up at crime scenes, thereby advancing gun-control policies. Fast and Furious weapons have been implicated in the murder of Border Patrol Agent Brian Terry and hundreds of other innocents in Mexico. Guns from the Fast and Furious scandal are expected to be used in criminal activity for years to come.
Attorney General Eric Holder was held in contempt by the House of Representatives over his refusal to turn over documents about why the Obama administration may have lied to Congress and refused for months to disclose the truth about the gun-running operation. It marked the first time in U.S. history a sitting Attorney General was held in contempt of Congress.
On June 20, 2012, the eve of the contempt citation, President Obama stepped in and invoked “executive privilege” over the Fast and Furious documents the House Oversight and Government Reform Committee had subpoenaed eight months earlier. This invocation, besides ensuring no disclosures would be made before President Obama’s reelection, also had the effect of protecting Holder from being prosecuted for contempt, because it is the “practice” of the DOJ to not prosecute contempt of Congress charges if the documents in dispute are being withheld pursuant to executive privilege claims.
Judicial Watch filed its FOIA request for the “executive privilege” documents just two days after President Obama made his unprecedented assertion of this presidential privilege. When the DOJ denied that request, Judicial Watch filed a FOIA lawsuit on September 12, 2012. On February 15, 2013, Judge Bates stayed the Judicial Watch lawsuit, in part to allow ongoing settlement discussions between the Justice DOJ and the House Committee to continue. But on July 18, 2014, after a 16-month delay, Judge Bates ordered the DOJ to turn over to Judicial Watch a “Vaughn index” of all Fast and Furious materials by October 1 (the date, under this week’s court ruling, is now October 22).
Judicial Watch has filed several other FOIA lawsuits to obtain Fast and Furious scandal:
- On October 11, 2011, Judicial Watch sued the DOJ and the ATF to obtain all Fast and Furious records submitted to the House Oversight Committee.
- On June 6, 2012, Judicial Watch sued the ATF seeking access to records detailing communications between ATF officials and Kevin O’Reilly, former Obama White House Director of North American Affairs at the U.S. National Security Council.
- On September 5, 2013, Judicial Watch sued the DOJ seeking access to all records of communications between DOJ and the House Oversight Committee relating to settlement discussions in the Committee’s 2012 contempt of Congress lawsuit against Holder. The contempt citation stemmed from Holder’s refusal to turn over documents to Congress related to the Fast and Furious gunrunning scandal.
- On May 28, 2014, Judicial Watch sued the DOJ on behalf of ATF Special Agent John Dodson, who blew the whistle on Operation Fast and Furious and was then subjected to an alleged smear campaign designed to destroy his reputation.