Category Archives: FBI

China Buying Private Schools in America

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The death of knowledge and the death of outrage…..exactly who in government approves these transactions?

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  • In December 2017, two different Chinese investment firms bought primary schools and at least one secondary school in the United States.
  • Foreign nationals can obtain F-1 visas to attend U.S. schools beginning in kindergarten and running through graduate and post-graduate education.
  • In 2018, 39,904 Chinese F-1 students were attending secondary schools in the United States.
  • The strong demand among Chinese nationals for a U.S. secondary education reportedly comes from their families’ belief that attending an American high school will increase the likelihood that those students will be subsequently accepted to U.S. colleges and universities.

CIS: An almost two-and-a half year-old article in China Daily detailed an interesting phenomenon: Chinese investors purchasing private K-12 schools in the United States “in the hopes of cashing in on Chinese students’ quest for admission into a US college.” That report not only highlights an interesting pathway for foreign students to obtain a student visa to attend U.S. colleges and universities, but it also shines a light on the F-1 nonimmigrant student visa program at the primary and secondary level.

The article explained that in December 2017, “Primavera Capital, a China-based private equity firm, paid about $500 million for the Stratford School system, which operates schools throughout California.” That same month, Newopen Group, a “Chinese education company”, bought Florida Preparatory Academy for an undisclosed amount.

Stratford School - Preschools - Santa Clara, CA - Reviews ... Santa Clara/ The Stratford School system website has a slogan on their home page: A CLASSROOM OF COLLABORATION CAN CHANGE THE WORLD. There are 25 campuses in California

According to its website, Primavera Capital Group, which has offices in Beijing and Hong Kong, has a heavy presence of Goldman Sachs alumni, many of whom themselves have degrees from elite American universities (including Harvard, Columbia, NYU, and my alma mater, the University of Virginia).

Newopen USA is described as “a subsidiary of the Chongqing, China, based Newopen Group”. LinkedIn describes a “Chongqing Newopen Education Group” as “the most influential and valuable education group in China”, which “manages 2 universities, 5 middle schools, 2 affiliated primary schools, 31 kindergartens” (Florida Preparatory Academy is not on the list).

The website for that organization is largely in Mandarin (the English-language version does not load), but the Google Translate version states that it was established in 1993 and “currently has 2 universities, 13 primary and secondary schools, [and] 31 kindergartens”; its educational sites include Los Angeles and Florida — logically Florida Preparatory Academy.

Stratford School’s website lists 30 separate locations, five in Southern California and 25 in the greater Bay Area (including in tech-heavy San Jose, Palo Alto, and San Francisco). Those locations offer differing levels of education, from pre-school through eighth grade (a high school is planned), as well as summer camps. Its curriculum “introduces learning and innovation skills through STEM based learning. Anchored in science and math, the STEM classroom emphasizes critical thinking, authentic problem solving, creativity, and innovation.”

Florida Preparatory Academy, “a coeducational college-prep school for grades 5-12” founded in 1961, describes itself as “a premier day and boarding school in Melbourne, Florida.” Among other programs (including an “English Language Program … designed for International Students that are learning English as a new language”), it offers a “unique dual enrollment opportunity at Florida Institute of Technology and Eastern Florida State College”.

Notably: “Any high school senior completing six or more credits at Florida Tech with a 3.0 overall GPA is guaranteed … [a]dmission to Florida Tech upon completion of the full-time undergraduate admission process.” Such admission would facilitate, if not guarantee, the extension of F-1 status for foreign students.

Florida Preparatory Academy is not cheap, at least for students who live there full time: seven-day boarding students (likely the vast majority of F-1s) pay $40,500 in tuition, room, and board (before uniforms). Day students, by comparison, only pay $14,200.

Returning to the China Daily article, I would note that a key point for the investments by Primavera and Newopen in those institutions is to tap into the market of parents in China who want to put their children on a path to higher education in the United States. That article notes: “The strong demand comes from the Chinese families’ belief that the experience at US secondary schools will increase their children’s chances of being accepted to US universities.”

Although we generally think of F-1 student visas in the context of colleges and universities, those visas are also available for foreign nationals to study in the United States at a private K-12 school, or a public high school, as well. Study at a public high school is limited to 12 months for an F-1, and the foreign student must reimburse the costs of tuition (dependents of F-1s, known as “F-2s”, can study wherever they like, including public school), but there is no limit on the amount of time that a foreign student can attend a private K-12 school.

The first step to obtaining that visa is acceptance by a school approved by the Student and Exchange Visitor Program (SEVP, which is administered by ICE), followed by that school’s issuance of a Form I-20 and the filing of an application by the student at a U.S. embassy or consulate for an F-1 visa.

The list of SEVP certified schools runs 272 pages, and includes the middle schools run by Stratford Schools in Sunnyvale, San Jose, and Fremont, as well as Florida Preparatory Academy. Tuition at the three Stratford schools runs $23,510 per year, and there is no boarding option, raising the question of where F-1 middle school students live.

There are, by my count, at least 200 elementary schools on the list (the level of education offered for many is not entirely clear, and I am basing my count on the number identified as “elementary”) and at least 75 middle schools (again, they are not all identified as such, and there are likely many more).

The number of high schools is similarly not clear from the SEVP list (not all identify themselves as such), but one report stated that 2,800 U.S. high schools hosted international students in 2016.

How many Chinese students are in pre-college programs in the United States? I was unable to find the number of those at the primary school level, but the report, “Globally Mobile Youth: Trends in International Secondary Students in the US, 2013-2016”, from the Institute of International Education (IIE), states that in 2016, there were 59,392 secondary school students in the United States on F-1 visas (an additional 22,589 were exchange students on J-1s).

Of that number, 33,275 (56 percent) were from China. According to SEVP, by 2018 (the last year for which reporting was available) there were 39,904 F-1 students at the secondary school level from that country — an increase of almost 17 percent in two years.

Consistent with excerpts above from China Daily, the IIE report states: “A common perception among international secondary students and their families is that a U.S. educational experience at the secondary level will make them more competitive applicants to American colleges and universities.” Given the increase in F-1 secondary students from China, and the actions of Primavera Capital and Newopen Group, that perception is likely correct.

With respect to the fact that F-1 students at public high schools are limited to one year of study, the report notes that some “students may seek to transfer to a private school after completing their public school experience or come to a public school for just their senior year and then apply to a college or university in the United States.” And, relevant to the Florida Preparatory Academy/Florida Tech “dual enrollment opportunity”, the report states:

There have also been instances of higher education institutions establishing affiliated international high schools on their campuses to aid higher education recruitment. These expanding models widen the opportunities for international students to receive a U.S. high school education that provides a clear pathway to U.S. higher education.

In summary, F-1 student status is not limited to college and university students, but is available to foreign nationals beginning in kindergarten. For many foreign nationals — and in particular students from China — K-12 education in the United States, while an expensive endeavor, is a pathway to higher education. At least two different firms have put money on it.

Sanction China by Stopping World Bank Loans to CCP

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Decoupling the United States from China is a convoluted and complicated process. Some lawmakers make it sound easy by just terminating manufacturing agreements by U.S. companies and bring it stateside. Ah but hold on…it is important to know some other details that lawmakers on both sides of the aisle are not telling you.

Consider the items below:

1.  Commerce Department official warned Congress recently that China is raising billions of dollars in U.S. capital markets and the activity could undermine American security.

Nazak Nikakhtar, assistant secretary for international trade at the Commerce Department, testified last month that Chinese companies raised $48 billion from American capital markets from 2013 through the end of last year.

Ms. Nikakhtar told the congressional U.S.-China Economic and Security Review Commission that 172 Chinese companies in September were listed on the three largest U.S. exchanges — Nasdaq, the New York Stock Exchange and the NYSE American — with a total market capitalization of more than $1 trillion. More here.

Confucius Institutes and U.S. Exchange Programs: Public ...

2. Charles Lieber, the chair of Harvard University’s Department of Chemistry and Chemical Biology, and two Chinese nationals who were researchers at Boston University and a Boston hospital were charged by the U.S. Justice Department with lying about their purported links to the Chinese government. But hold on, it is much worse. China has a real impact on all levels of the U.S. education system. The Senate Permanent Subcommittee on Investigations issued a 96 page report describing the Confucius Institute and how those agreements work with domestic universities. Further, major universities failed to report the other monies they receive from China among other countries. It is shocking how foreign money has infiltrated the U.S. education system and to learn which country does what and how much, click here.

China moon landing: Spacecraft makes first landing on moon ...

3. China launched its Long March 5B rocket into space. This is an effort by China to build a modular space station. It did however fall out of orbit falling for the most part into the Atlantic Ocean off the coast of Africa near the Ivory Coast. Additionally, as China continues to launch at least 12 more space operations it already has landed on the dark side of the moon. China and Russia are in fact collaborating on lunar operations including for shared bases. Russia’s operations coordinating with China are centered and funded by Roscosmos for Space Activities and the Skulkovo Foundation. This is the foundation where Hillary Clinton created U.S. technology (Silicon Valley) and Skulkovo via the Clinton Foundation via a major donor known as Viktor Vekselberg. This is the other scandal of technology transfer(s) to rogue nations.

4. We are already somewhat versed in Chinese complicity in the pandemic and the World Health Organization but lets go to the World Bank shall we? As of early 2019, China was sitting on cash reserves of some $3 trillion. It is the world’s second-largest economy, behind the U.S. It directly lends more money to other nations each year than the $2 billion or so it borrows from the World Bank annually. The World Bank, based in Washington, D.C., was established after World War II to help European countries rebuild. Its mission has evolved over the years and is now to finance development in low- and middle-income countries with the goal of eliminating extreme poverty.

“From a pure economic vantage point, there is no good reason for the World Bank to continue making loans to China,” says Eswar Prasad, a professor of economics at Cornell University.

“The Chinese don’t need the money,” Prasad says. “There is a glaring optics problem.” He adds that the argument could be made that the money lent to China could be put to better use elsewhere.

And it’s not as if the World Bank has an infinite amount of money to parcel out. Its lending budget, drawn from reserves, donations and the interest it earns on capital, is limited. So a dollar lent to China is a dollar that is not available for a project somewhere else in the world. The Trump administration, which regularly beats up on China, accusing it of manipulating global trade rules for its own benefit, has blasted the World Bank for lending too much to China.

Prasad says the World Bank’s lending to China is becoming “untenable” and will have to stop fairly soon.

Bert Hofman, the World Bank’s country director for China, says the amount of money China is borrowing each year from the global bank is just a small fraction of what the country is investing each year in domestic programs. And he believes that a motivation for China’s borrowing goes beyond money.

“The reason they still borrow is because they feel that the expertise of the World Bank is valuable to them,” Hofman says.

World Bank loans come with advisers and auditors who help implement (and monitor) bank-funded projects.

China gets access to international experts. The World Bank remains engaged with China and is able to see how new projects play out in this booming middle-income country. Hofman sees it as a win-win.

Prasad agrees that there are still some good reasons for the World Bank to remain engaged with China. Many of the bank’s loans to China are for projects addressing climate change and mitigating pollution from the country’s booming factories.

“The risk the World Bank faces is that if it only lends to very poor countries, it might end up not having much of a role to play in the large, fast-growing emerging-market economies,” Prasad says. “So the World Bank, in a bid to remain relevant and push its agenda on issues such as climate change and social development, has continued to lend to China.” More here.

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The World Bank said its board adopted a new plan to aid China with $1 billion to $1.5 billion in low-interest loans annually through June 2025, despite the objections of U.S. Treasury Secretary Steven Mnuchin and several U.S. lawmakers.

World Bank approves $300mn for agriculture reforms in ...

Mnuchin told a House Financial Services Committee hearing that the Treasury’s representative on the board had objected on to the plan on Wednesday, adding he wants the World Bank to “graduate” China from its concessional loan programs for low- and middle-income countries.

The five-year lending strategy plan was published on Thursday afternoon after the World Bank’s board “expressed broad support” for the multilateral development lender’s engagement in China’s structural and environmental reforms.

The World Bank said its lending would decline over the “country partnership framework” plan, in line with reformsagreed under a $13 billion capital increase agreed in 2018.

The World Bank loaned China $1.3 billion in the fiscal 2019 year ended June 30, down from about $2.4 billion during fiscal 2017. The new plan calls for lending to “gradually decline” from the previous five-year average of $1.8 billion.

“Lending levels may fluctuate up and down from year to year due to normal pipeline management based on project readiness,” the World Bank said in its plan.

*** So we have a collection of reparation options due to the pandemic when it comes to China, we have a building space battlefield, we have corruption within China and now we have the U.S. at major odds with the Chinese Communist Party’s in violation of the One Country, Two Systems Act of 1997 with regard to Hong Kong. Secretary of State Pompeo declared to Congress that Hong Kong was no longer autonomous with The CCP which is correct but this will spark continued hostilities between the two nations even as naval conflicts continue in the South China Sea.

None of this will be easy but the reader should know more details to assess what may be ahead in global relations.

 

Pigs Do Fly, This is From the Boston Herald Editorial Board

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I kept asking, wondering and hoping that someone that manifested Schiff’s lies or the operation(s) of the FBI and the DoJ during this nightmare to come forward and admit it all was a concocted charade. I never expected it to come from the Boston Herald Editorial Board Staff. Yes, pigs DO fly. And a hat tip for manning up.

Sure would be fun to talk to a member or two of the Board and ask them what was the defining moment for them and what do they know that is not out just yet in the public domain…further….will the Boston Herald write yet another op-ed with each new release of transcripts or documents?

It would be fun for President Trump to invite the Editorial Board to the White House for a beer summit…right? RIGHT?

Boston Herald declares bankruptcy, agrees to be sold

BH: House Intelligence Committee Chairman Adam Schiff has been feeding the American people misinformation for years. He used his position — replete with access to information and people in the know — to distribute wild accounts of Russian collusion with the Trump campaign.

The effect was to frighten and alarm millions of Americans, sowing division between neighbors, toxifying our discourse and raising anxieties.

The Trump administration spent time and resources fighting off the fallacy that cursed them since day one and deprived the American people of a president who could devote his time and energy to the policies they had elected him to enact.

Just a year ago, Adam Schiff was on CNN, MSNBC, ABC, Fox News — anyone who would have him — talking about Trump/Russia collusion “in plain sight.”

Even after the Mueller report clearly indicated that there was no provable collusion or coordination between the Russian government and the Trump campaign, Schiff continued to propagate the lie.

Chris Wallace of Fox News pressed Schiff on the claims, playing the congressman a highlight reel of his assertions of collusion.

Schiff shot back, “What more clear intent to collude could you have than the Russians offering dirt on Hillary Clinton as part of what was described as an effort to help Mr. Trump in the campaign and Don Jr. saying if it’s what you say, I would love it?”

“Intent to collude.”

That after years sounding the alarm about “damning evidence” of collusion with Putin that was “more than circumstantial.” This scandal was “beyond Watergate,” Schiff, privy to all of the sensitive intelligence, told us.

We found out this week that Schiff always knew there was no evidence of collusion. By day he would interview former Obama administration officials including Director of National Intelligence James Clapper, Ambassador to the UN Samantha Power, national security adviser Susan Rice and Attorney General Loretta Lynch, who would tell him there was nothing, and by night he’d jump on a newscast assuring Americans that he’d seen evidence of something.

But there was nothing.

The canard Schiff continued to promulgate was supercharged, though, by the media, who went wall to wall with their coverage. Relics from Watergate were dragged out onto “Breaking News” sets and we were told how serious the matter was.

Hysterical anti-Trump media personalities took to social media to scold anyone who doubted the Russia conspiracy, lecturing us about putting “country over party.”

The coordination between Schiff and the media was pernicious.

As Lee Smith wrote in the New York Post, “The tragic fact is that once-prestigious press organizations, including CNN as well as MSNBC, the New York Times and the Washington Post, weren’t fooled by the collusion hoax. They were an essential part of it.”

Adam Schiff is a vile actor. Democrats must follow their own mantra and put their country over party and eject the snake in their midst.

There are bipartisan endeavors — like infrastructure legislation, economic recovery and the battle against the pandemic — that have undoubtedly been hindered by the malevolence of the congressman from California who abused his power by weaponizing his position in order to bring down a duly-elected president.

We will continue to bear the poisoned fruit from his actions for years and it will happen again in a different form unless there is a reckoning, once and for all.

Pensacola NAS Shooter Tied to AQAP

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Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Monday, May 18, 2020

Attorney General William P. Barr and FBI Director Christopher Wray Announce Significant Developments in the Investigation of the Naval Air Station Pensacola Shooting

Saudi gunman and at least 3 victims reported dead at NAS ... photo

Today, Attorney General William P. Barr and FBI Director Christopher Wray announced significant developments in the FBI’s investigation of the December 6, 2019 shooting at Naval Air Station Pensacola that killed three U.S. sailors and severely wounded eight other Americans.  On January 13, 2020, Attorney General Barr announced that the shooting was an act of terrorism and publicly asked Apple to help the FBI access the locked contents of two iPhones belonging to the deceased terrorist Mohammed Saeed Alshamrani.  The company declined to do so.

Attorney General Barr announced that the FBI recently succeeded in unlocking the phones of Alshamrani, who had attempted to destroy them while launching his attack.  The phones contained important, previously-unknown information that definitively established Alshamrani’s significant ties to Al Qaeda in the Arabian Peninsula (AQAP), not only before the attack, but before he even arrived in the United States.  The FBI now has a clearer understanding of Alshamrani’s associations and activities in the years, months, and days leading up to the attack.

“Thanks to the great work of the FBI – and no thanks to Apple – we were able to unlock Alshamrani’s phones,” said Attorney General Barr.  “The trove of information found on these phones has proven to be invaluable to this ongoing investigation and critical to the security of the American people.  However, if not for our FBI’s ingenuity, some luck, and hours upon hours of time and resources, this information would have remained undiscovered.  The bottom line: our national security cannot remain in the hands of big corporations who put dollars over lawful access and public safety.  The time has come for a legislative solution.”

“I could not be prouder of the relentless dedication of the men and women at the FBI who worked for months under difficult conditions to access these devices,” said Director Wray.  “Their skill and persistence, and the sustained investigative efforts by FBI Jacksonville, the FBI’s Counterterrorism Division, and our many other federal, state, and local partners, have been nothing short of extraordinary in this case.  As we continue to seek answers around the December 6th terrorist attack that killed three American service members and wounded others, I want their families, and all Americans, to know that protecting the United States from those who seek to do us harm remains the FBI’s foremost priority.  Our work against the threat of terrorism never rests.”

Investigators sought and received court authorization to search the contents of Alshamrani’s iPhones within one day of the December 6, 2019 terrorist attack.  Unable to unlock the phones because of their security features, and having exhausted all readily available options, the FBI approached Apple for its assistance in early January 2020.  The company declined to assist.  FBI technical experts succeeded in accessing the phones’ contents over four months after the attack, revealing highly-significant evidence, including:

  • Alshamrani and his AQAP associates communicated using end-to-end encrypted apps, with warrant-proof encryption, deliberately in order to evade law enforcement.
  • Alshamrani’s preparations for terror began years ago.  He had been radicalized by 2015, and having connected and associated with AQAP operatives, joined the Royal Saudi Air Force in order to carry out a “special operation.”
  • In the months before the December 6, 2019 attack, while in the United States, Alshamrani had specific conversations with overseas AQAP associates about plans and tactics.  In fact, he was communicating with AQAP right up until the attack, and conferred with his associates until the night before he undertook the murders.

The evidence derived from Alshamrani’s unlocked phones has already proven useful in protecting the American people.  In particular, a counterterrorism operation targeting AQAP operative Abdullah al-Maliki, one of Alshamrani’s overseas associates, was recently conducted in Yemen.

Exhibit 1

Exhibit 2

Exhibit 3

Response by DoD Secretary Esper:

Today, the Department of Justice and the Federal Bureau of Investigation announced additional findings about the shooting on Dec. 6, 2019 at Naval Air Station Pensacola. This was a tragic day for our military and our deepest condolences are still with the friends and families of Ensign Joshua Watson, Airman Mohammed Haitham, Airman Cameron Walters, and with the eight others wounded in this terrorist attack.

The new information provided by Director Wray and Attorney General Barr underscores the threats to our nation posed by al-Qa’ida and its affiliates and highlights the necessity of the security measures we take every day to protect the American people, our interests and our friends – as well as those that defend our nation.

”The Department of Defense is incredibly grateful for the diligent work by the FBI team investigating this horrific attack that took the lives of three American patriots,” said Secretary of Defense Dr. Mark. Esper. ”Based on the FBI findings, and in addition to already executed protective measures, the Department will take further prudent and effective measures to safeguard our people.”

In response to this terrorist attack, the Department of Defense took immediate action, ordering a stop to all International Military Student operational training at U.S. installations and directing a review of all vetting and security procedures. In January Secretary Esper went to Pensacola and met with Navy leadership, and with flight training students and first responders to hear first-hand the accounts of those on the scene. Within two weeks of the tragedy, the Secretary approved an extensive list of findings and recommendations and directed immediate implementation across all the military Services. These include additional measures for background checks and new physical security procedures, specifically:

  • New restrictions on IMS possession and use of firearms and ammunition.
  • New control measures for limiting IMS access to military installations and U.S. government facilities.
  • New standards for training and education on detecting and reporting insider threats.
  • Establishment of new vetting procedures that include capabilities for continuous monitoring of IMS while enrolled in U.S.-based training programs.
  • Acknowledgement of willingness to abide by these standards, committing to full compliance with all U.S. laws on-and off-duty.

We continue to work with the FBI as they uncover more information pertaining to the terrorist, his links with al-Qa’ida, and the methods he used to conceal this from us. At the same time, we continue to review our procedures to identify any additional vetting and security measures we can adopt.

Despite this tragic event, our military partnerships and the international military student program remain strong and are a vital component of our National Defense. Security cooperation directly contributes to U.S. national security and foreign policy objectives by helping allies and partners improve their defense capabilities and enhance their ability to participate in missions alongside U.S. forces. We will continue to work closely with them to counter the threats of international terrorism and protect our freedom.

Mexico Comes Demanding Documents of Fast and Furious, Now?

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MEXICO CITY, May 11 (Reuters) – Mexico’s foreign minister on Monday posted a video online detailing a diplomatic note to the U.S. embassy requesting answers about a gun-running sting under the Obama presidency, keeping a spotlight on the controversial issue.

Live: Trump threatens tariffs on Mexico over immigration ...

In the video, Foreign Minister Marcelo Ebrard cited former U.S. Attorney General Eric Holder as saying Mexican authorities knew about the 2009-2011 scheme known as ‘Fast and Furious.’

Representatives for Holder did not immediately reply to a request for comment. Nor did the U.S. embassy in Mexico City.

It was the first time Ebrard or President Andres Manuel Lopez Obrador had made direct reference by name to a key U.S. figure connected to the program since the issue resurfaced in Mexico a week ago.

In a bid to curb cross-border gun smuggling, the U.S. scheme allowed people to illegally buy arms in the United States and take them to Mexico so that the weapons could be tracked and lead law enforcement officials to crime bosses. Some of those guns were subsequently blamed for the fatal shootings of both Mexican and U.S. citizens.

The current Mexican government has zeroed in on the program to highlight possible corruption under previous Mexican administrations amid a debate over how much they knew about the U.S. operation.

Holder, who served as U.S. Attorney General under Barack Obama between 2009 and 2015, had previously issued a statement via the U.S. embassy in Mexico contending that “Mexican authorities” knew about the program, Ebrard said.

“The (Mexican) government requests that it be provided with all the information available regarding the ‘Fast and Furious’ operation,” Ebrard said in the video posted on Twitter.

Lopez Obrador first brought up the gun-running program last Monday when answering questions about Genaro Garcia Luna, a former Mexican security minister who was arrested in the United States in December on drug trafficking offenses.

Garcia Luna served under former President Felipe Calderon from 2006-12, spearheading a crackdown on drug cartels. Lopez Obrador has used his arrest to argue that corruption was rampant in past Mexican governments.

Some critics of Lopez Obrador contend that he has done U.S. President Donald Trump a favor by raising questions about Garcia Luna as the U.S president prepares to fight a November election against Joe Biden, who was vice president from 2009 to 2017 under Obama.

Lopez Obrador’s supporters say he has focused on the issue to illustrate hypocrisy among his domestic adversaries.

Calderon, a longstanding political rival of Lopez Obrador, said last week there was no agreement between Mexico and the United States to permit illicit entry of arms.

‘Fast and Furious’ followed earlier sting operations that began under Obama’s predecessor, George W. Bush. (Reporting by Drazen Jorgic and Sharay Angulo; Editing by Dave Graham and Jane Wardell)

****  Judge rules DOJ must share documents from Fast and Furious ... photo

Americans paying attention to the unresolved Obama era scandals would like to know all the truth too. So as a refresher, here is the last status of the investigation.

May, 2016:

JS: Last week, Judge Amy Berman Jackson issued an important opinion in Oversight Committee v. Lynch, the subpoena enforcement litigation related to the House Oversight and Government Reform Committee’s investigation into Operation Fast and Furious. Media outlets generally reported it as a win for Congress and loss for the Executive. In an acute sense, that is true — Judge Jackson ordered the Justice Department to produce sensitive materials that reflect deliberations about how to respond to congressional requests and media inquiries. However, the opinion is a much more complicated ruling that reinforces some longstanding executive branch legal arguments that Congress has perennially disputed. In the longer term, this opinion may actually be a win for the executive branch, despite being ordered to hand over documents the President designated as privileged.

Background

The case arose from DOJ’s refusal to turn over to Congress a number of disputed documents pursuant to President Obama’s formal assertion of executive privilege. The underlying congressional investigation sought information related to failed gun trafficking investigations led by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) that came to be collectively referred to as Operation Fast and Furious. Starting during the fall of 2009, ATF agents in Arizona began setting up a series of sting operations targeting gunrunners who were moving large quantities of firearms across the Mexico border. But, inadequate surveillance, technology failures, and poor judgment led ATF to allow many of the guns it was using in the stings to “walk.” A number of those lost weapons ended up in the hands of drug cartels and showed up at various crime scenes on both sides of the US-Mexico border, including at the scene of the murder of Border Patrol Agent Brian Terry in December 2010. Just last week, within days of Judge Jackson’s opinion, news outlets reported that one of the guns at issue in Operation Fast and Furious was found at El Chapo’s hideout.

However, the document dispute has very little to do with the allegations about ATF’s problematic investigative tactics. With the exception of a few documents related to wiretaps, grand jury materials, and confidential information in open investigative files, Congress received almost all of the underlying documents related to Operation Fast and Furious.

Instead, the most significant dispute in the case relates to Congress’s allegation that DOJ officials lied to Sen. Chuck Grassley (R-Iowa) in February 2011. Congress then aggressively sought all documents related to the Department’s communications and deliberations about how to respond to the congressional investigation and media inquiries, for before and long after the alleged misrepresentation to Grassley. The administration eventually accommodated the Committee by providing access to all the documents that had led to providing Grassley inaccurate information. Those documents demonstrated good faith but a lack of diligence by responsible officials in both Phoenix and Washington, DC. However, Congress forged ahead with a sprawling meta-investigation that raised significant institutional concerns within the Executive about the collapse of “separation” in the separation of powers. (At that time, I was Associate Counsel to the President and was involved in White House negotiations with the Oversight Committee over various congressional requests related to Operation Fast and Furious.) The document stalemate served as the primary basis for a House vote of contempt of Congress against then-Attorney General Eric Holder in June 2012. That same month, the House authorized this civil enforcement lawsuit.

Short-Term Loss for the Executive

At the top line, last week Judge Jackson ordered DOJ to produce all the documents it had designated as protected by the deliberative process privilege. In the absence of an appellate reversal, the Oversight Committee will obtain its prize: some 5,342 unique documents reflecting executive branch deliberations about how to respond to a hostile congressional committee and how to respond to media requests. To be sure, the Committee will seek to make hay of those deliberations and any impolitic remarks they contain.

DOJ had argued the production of documents revealing deliberations about how to respond to Congress would chill fulsome responses to Congress. The court quotes DOJ’s longstanding position that disclosure “would inhibit the candor of such Executive Branch deliberations in the future and significantly impair the Executive Branch’s ability to respond independently and effectively to congressional oversight.” I have previously argued that branch independence is critical in response to oversight requests.

Judge Jackson’s order relies on her holding that Congress’s oversight need outweighs DOJ’s confidentiality interest on the facts in this record. Specifically, she suggests the need for deliberations to be confidential was substantially weakened by prior subject matter disclosures by the public report of DOJ’s Office of Inspector General (OIG). She finds “whatever incremental harm that could flow from providing the Committee with the records that have already been publicly disclosed is outweighed by the unchallenged need for the material.”

Ironically, DOJ has long relied on the OIG report to bolster its argument that Congress could obtain the information elsewhere, which is one of the factors to be considered in the leading DC Circuit opinion on privilege, In re Sealed Case (Espy).

The court’s analysis seems to suggest that an executive branch entity must challenge the legitimacy of Congress’s investigative interests at the categorical subject-matter level rather than at the incremental request level. By characterizing Congress’s interest as an “unchallenged need,” Judge Jackson uses DOJ’s ready concession that Congress had legitimate oversight interests in problematic gun trafficking investigations against it. DOJ didn’t challenge Congress’s investigation as illegitimate, but it certainly argued that Congress has almost no legitimate interest in peering into DOJ’s process of drafting letters to Congress. At the individual request level, DOJ vigorously challenges Congress’s need. The opinion reflects a court that appears to have prudential concerns about assigning relative values to inherently political determinations about the needs and interests of coordinate branches.

However, oversight disputes do not play out at the categorical level. They play out in the give-and-take of phone calls, letter requests, subpoenas, media availabilities, depositions, and transcribed interviews. Further, unlike judicial proceedings, there are no referees, protective orders, evidentiary rules, or motions to quash during that investigative process. By the time an interbranch dispute reaches the courts, all of those fights have happened and positions have hardened. A categorical approach is a meat axe where a scalpel is needed.

That is why I took some issue with the court’s prior ruling that that the matter is justiciable. To me, justiciability requires judicious review of the reasonableness of requests, the chilling effect of a particular disclosure, and the incremental nature of harms. So, as I wrote in October 2013:

If a court is going to resolve an important dispute between Congress and the President, wouldn’t congressional need, withholding grounds, and accommodation alternatives be the essential inquiry? … The notion that the underlying facts about controversial ATF investigative tactics have come to light and remedied should bear on analysis of Congress’s need to intrude on Executive Branch deliberations.

Likely of little solace to the executive branch, Judge Jackson cabined her rationale to “the specific and unique circumstances of this case.” In addition, the court specifically noted that its “ruling is not predicated on a finding that the withholding was intended to cloak wrongdoing on the part of government officials or that the withholding itself was improper.”

Longer-Term Win for the Executive

Of more comfort to DOJ, Judge Jackson has now ruled in favor of the Executive Branch, and against Congress, on the two most contested issues that are likely to have enduring precedential effect.

First, as I have discussed previously, the court’s August 2014 ruling held the Executive Branch may assert a deliberative process privilege in response to a congressional subpoena. Congress had argued that the deliberative process privilege was grounded in common law alone and therefore inapplicable to a separation-of-powers dispute. In Judge Jackson’s prior opinion, “the Court reject[ed] the Committee’s suggestion that the only privilege the executive can invoke in response to a subpoena is the Presidential communications privilege.”

Second, in last week’s opinion, 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.”

As a practical matter that protection dissolved in the face of the court’s prior disclosure and incremental harm analysis. But the holding is a significant doctrinal win for the Executive branch. Many DOJ attorneys will have an impulse to appeal this ruling in order to shield the ordered disclosures, but perhaps the executive branch’s two substantial legal victories will caution against it.