Eric Holder’s bid to keep his Fast and Furious documents secret has been rejected by a federal judge. Last night while the attention was on the approaching government shut down, U.S. District Court Judge Amy Berman Jackson turned down Holder’s attempt to dismiss the House Oversight Committee’s lawsuit against the DOJ for refusing to turn over documents related to the Fast and Furious gunrunning scandal.

“This case presents the sort of question that the courts are traditionally called upon to resolve,” Jackson said in her 44-page decision, issued more than five months after lawyers argued the issue in her packed courtroom and more than a year after the House committee filed suit. “Dismissing the case without hearing it would in effect place the court’s finger on the scale, designating the executive as the victor based solely on his untested assertion that the privilege applies,” she wrote.

As you may remember,  Fast and Furious was a project of the Bureau of Alcohol, Tobacco and
Fireworks (and arm of the DOJ.   “Geniuses” high up in ATF (and possibly
the DOJ and White House) thought it would be a great idea to sell
assault weapons to the violent Mexican drug cartels.  Then, in order to fight the Cartels, they decided to all owe them to keep their weapons once they were used in committing
crimes, to track the guns movements.

Those assault weapons ceded to the drug cartels were used for crimes in Mexico (including the murder of Mexican Police Chief, used to kill a Border Agent named Brian Terry, turned up  at the scenes of violent crimes in Phoenix and other crimes across the country.  The House Oversight Committee and
Senator Grassley of the Senate Judiciary Committee has been
investigating “Fast and Furious” in an attempt to identify who approved
this lame-brained scheme and how operations like this be prevented
from happening in the future.

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When, after months of wrangling,  the House set a deadline for the DOJ to turn over the documents it needed to continue the investigation, the President protected Holder with a claim of executive privilege. An unusual claim as executive privilege is used to protect conversations/emails involving the president but the Oversight Committee wasn’t asking for documents involving Obama.

Justice Department lawyers had argued that if Jackson got involved in the dispute, all document fights between Congress and the executive branch could wind up in the courts rather than being resolved through negotiation. But the judge rejected that argument.

“The Court rejects the notion that merely hearing this dispute between the branches would undermine the foundation of our government, or that it would lead to the abandonment of all negotiation and accommodation in the future, leaving the courts deluged with subpoena enforcement actions,” Jackson wrote.

The decision from Jackson, an Obama appointee, largely tracked with a ruling U.S. District Court Judge John Bates — a President George W. Bush appointee — rendered in 2008 in a similar fight over records pertaining to Bush’s dismissal of a batch of U.S. attorneys in 2006.

Jackson called the Justice Department’s arguments in the current case “flawed and selective.” And she said the parade of horrible outcomes executive branch lawyers predicted during the Bush-era fight — involving frequent recourse to the courts by Congress — simply hasn’t materialized.

“One cannot help but observe that in the five years that have elapsed since [Bates’s] decision, the dire consequences prophesied by the Department have not come to pass,” the judge wrote.

The judge’s ruling does not mean Holder has to turn over the information, it simply means Jackson will now hear the case and determine whether or not the cover-up can continue.