Category Archives: government fraud spending collusion

The Fault Lines of Cutting Law Enforcement Budgets

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Los Angeles Mayor, Eric Garcetti has been working to trim the budgets of LAPD since 2017 and now in 2020 the proposed cuts are in the range of $150 million and passed the city council vote by 12-2.  He got major support from progressive groups for certain including CAIR-LA. He also had the support of Senator Kamala Harris (CA-D). The money is not a savings to local taxpayers but rather is being routed instead to helping communities of color. Tuesday’s unanimous city council vote to replace police officers with unarmed crisis response teams for nonviolent emergency calls. A portion of the money will be used to limit the furlough of municipal employees. In April, Mayor Eric Garcetti proposed furloughing 15,000 civilian employees due to the revenue shortfalls brought on by the coronavirus pandemic. This comes after the L.A. Unified School District Board of Education voted Tuesday night to slash the school police budget by $25 million, or 35%. According to city documents, the city’s revenue for 2019-2020 is estimated to be $6.32 billion, about $253.5 million below the 2019-2020 proposed budget.

Fault line is the consequence to public safety and leaving schools vulnerable to chaos instigated by gangs and unruly students, even more of a soft target.

In 2018, Minneapolis already cut the police budget by $1 million. Reclaim the Block, a grassroots organization that has been trying to divest the police department’s budget into crime and violence prevention programs. More cuts still to come to law enforcement while the reprogramming to prevention programs since 2018 have failed.

Reclaim the Block's demands weren't met, but organizers call this a step in the right direction.

San Francisco Mayor London Breed announced a plan to reduce the city’s police budget and reallocate those funds to social programs that benefit black communities. The plan does not specify how much it plans on cutting, but comes amid a $1.7 billion budget shortfall for the city.

In Philadelphia, the Mayor Jim Kenney is proposing cutting the city’s main civilian police oversight board while adding $23 million in new funds to law enforcement, according to WHYY.

In Phoenix, activists are requesting a 25 percent reduction in the police department’s budget but the city council has refused to consider the motion, according to the Arizona Republic.

Mayor Jenny Durkan proposed cutting the Seattle Police Department’s budget by about 5% through the rest of the year, but some elected officials and protesters say that falls far short of what they are demanding. Durkan said the city needs to “rethink and reimagine policing.” Seattle Police Chief Carmen Best similarly said more needs to be done to “maintain the trust of the community.”

Then there is the big one, New York. The New York City Council voted to pass an $88 billion budget just after midnight on Wednesday morning, in which funding for the NYPD was cut by roughly $1 billion.

The city faces a roughly $9 billion budget shortfall because of business closures stemming from the coronavirus pandemic. Mayor Bill de Blasio has insisted that cuts to the NYPD will not be detrimental to public safety, even as shootings have risen in the city since the beginning of 2020.

The mayor had two goals for this budget: maintain safety and invest in youth and our hardest-hit communities.

Not one mayor or city council has defined these social programs that will be funded by the re-routing of police department operating funds reductions. Yet, as we have civil society breakdown across the country and peace in cities and neighborhoods across the nation being replaced with gun fire, riots and looting, those unknown social programs don’t address public safety or incarceration of criminals arrested and found guilty of hundreds of unlawful acts.

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Defunding law enforcement is not going to stop protest road blocks causing major jams in traffic and the ability to move freely. Defunding law enforcement is not going to stop defacing private business or government property and the threats to private citizens at their own homes.

‘Black Lives Matter did not hold a protest yesterday': BLM ...

Fear is the fault line and the threat matrix builds when it comes to college campuses, small business, community events and even inside the work place. The burden of restoring law and order is not that of the Federal government but rather at the state and city level. The Federal government can make arrests when it comes to inter-state crimes or racketeering and can stop grants to states in violations to local and federal law. Citizens must challenge local leaders to protect and defend.

 

NYT’s Report on Russian Bounties is False

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Let us begin with Catherine Herridge and her Tweets shall we?

President Trump’s response to the NYT’s article was that he was never told of such a thing. Now we have Speaker Pelosi saying this is as bad as it gets.

Have we forgotten about the op-ed published by the New York Times this past February?

The deputy leader of the Taliban and one of the world’s most wanted militants has written an opinion piece for the New York Times in which he says the Afghan insurgents are “fully committed” to a deal with Washington.

The article, headlined “What the Taliban Want”, represents the highest-level statement from the group on months of negotiations with the United States, and comes as they are believed to be days away from signing an agreement that would see America begin to withdraw troops from its longest war.

It is also believed to the first time that Sirajuddin Haqqani — who doubles as head of the Haqqani network, a US-designated terror group that is one of the most dangerous factions fighting Afghan and US-led NATO forces in Afghanistan — has given such a lengthy statement in English.

Previously, he has communicated mainly through rare audio messages, usually in Pashto. The most recent one on a Taliban website was dated June 2017.

In the Times article, Haqqani repeated many Taliban talking points from the negotiations, including how women would have rights “granted by Islam” — the problem being, as many observers have pointed out, the group’s repressive and brutal interpretation of the faith.

The leader of a group known for the frequent use of suicide bombers targeting civilians also said he is “convinced the killing and the maiming must stop”.

The Taliban have been conducting direct talks with the US since 2018 on a deal which would see Washington begin pulling troops out in return for security guarantees from the militants and a promise to begin peace talks with the government in Kabul. More here.

Are we to assume the New York Times has sided with the Taliban and manifesting more Russian disinformation? Yup for sure. Perhaps too, the NYT’s and Russia have officially collaborated in Infektion. What is that?

Forgeries

The Internet Research Agency is infamous for flooding mainstream social media platforms with compelling disinformation campaigns. The GRU, Russia’s military intelligence agency, deploys strategic data leaks and destabilizing cyberattacks. But in the recent history of Russia’s online meddling, a third, distinct entity may have been at work on many of the same objectives—indicating that Russia’s disinformation operations went deeper than was publicly known until now.
Dubbed Secondary Infektion, the campaign came on the radar of researchers last year. Today, the social media analysis firm Graphika is publishing the first comprehensive review of the group’s activity, which seems to have begun all the way back in January 2014. The analysis reveals an entity that prioritizes covering its tracks; virtually all Secondary Infektion campaigns incorporate robust operational security, including a hallmark use of burner accounts that only stay live long enough to publish one post or comment. That’s a sharp contrast to the IRA and GRU disinformation operations, which often rely on cultivating online personas or digital accounts over time and building influence by broadening their reach.
Secondary Infektion also ran disinformation campaigns on a notably large array of digital platforms. While the IRA in particular achieved virality by focusing its energy on major mainstream social networks like Facebook and Twitter, Secondary Infektion took more than 300 platforms in all, including regional forums and smaller blogging sites. The combination of widespread and endless burner accounts has helped the group hide its campaigns—and its motives—for years. But the approach also made the actor less influential and seemingly less effective than the IRA or GRU. Without being able to build a following, it’s difficult to get posts to take off. And many Secondary Infektion campaigns were either flagged by platform anti-abuse mechanisms or simply pilloried by regular users.
“The main thing is that this really adds a large-scale, persistent threat actor into the mental map we have of Russian information operations,” says Ben Nimmo, director of investigations at Graphika. “All the while you have the IRA running its operations, all the while you have GRU running its operations, you had Secondary Infektion running its own brand of operations, which had a very different style, had a very different approach. This was all running at the same time, and quite often they were all homing in on the same targets.”
Secondary Infektion has a familiar hit list. The group has been active in running disinformation campaigns related to world elections, has attempted to sow division between European countries, and has highlighted US and NATO dominance and aggression. Domestically, the actor has run campaigns in defense of Russia and its government, targeted activists and groups critical of the regime—like the reporting group Bellingcat and anti-corruption advocate Alexei Navalny—and tried to discredit the World Anti-Doping Agency. Secondary Infektion has also painted Turkey as a villainous rogue state and sown division over issues of global migration, particularly Muslim displacement. It has run relatively few campaigns related to Syria and its civil war but is devoted to a common priority for Russia-backed digital actors: undermining and destabilizing Ukraine.
Though Secondary Infektion’s activities are difficult to track, Graphika researchers were able to piece the its activity together by looking at rare occasions where the group reused an account a few times, and identifying patterns in sets of blogs and forums the group would post to. Secondary Infektion also has a particular tendency to build its campaigns around “leaked” documents that are really just fabricated by the group but claim to reveal, say, corruption among the Kremlin’s critics or an anti-Russian plot from the US. Graphika did not see evidence that Secondary Infektion used ads to promote its content, but after months of investigation the researchers did find a sort of digital fingerprint they could use to track Secondary Infektion campaigns at a much larger scale and link many more digital posts to the actor. Graphika would not comment on the nature of this tell, though.
Facebook was the first to discover a group of Secondary Infektion accounts in May 2019, and provided the data to disinformation researchers along with the initial attribution to Russia. Since then other social networks and researchers have gathered more examples of the actor’s activity and reinforced the attribution. The group seemingly reduced its operations or went further underground after being publicly named in 2019. But it was still operating as of at least March 2020. Graphika is clear, though, that Secondary Infektion has not been tied to a specific organization or apparatus within Russia. Based on the available evidence and the group’s distinctive techniques and behaviors, the researchers don’t believe that Secondary Infektion operates under the purview of the IRA or GRU. But that remains possible. More here.
GRU is the Russian military mentioned in the NYT’s piece highly debated and contested in Washington DC right now.

 

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.

***

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.

 

Congress Attempting to Issue New Code of Conduct Rules for Judges

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This has been building for quite a while and was noticeable if anyone watched any Senate confirmation hearings for judge candidate nominees. Senator Sheldon Whitehouse, (D-RI) is one of the loudest drivers of this change.

House Judiciary Committee ranking member Rep. Jim Jordan, R-Ohio, is launching an investigation into a draft advisory opinion by the Judicial Conference’s Committee on Codes of Conduct which, if approved, would prohibit federal judges from being members of the right-leaning Federalist Society or left-wing American Constitution Society (ACS).

Jordan’s concern with the draft advisory opinion is that membership in these groups had previously been allowed, and while under the draft opinion this would no longer be allowed, membership in other groups including the American Bar Association (ABA) would continue to be permitted. The committee said their concern with the Federalist Society and ACS is that membership could lead to people questioning a judge’s impartiality when it comes to issues on which those groups have taken positions.

Federalist Society Introductory Meeting | Announce ...

Humm, the judges can participate in events held by those organizations, they just cant be active members? It was not too long ago that Senator Dianne Feinstein also had a huge issue with Judge Amy Barrett’s fidelity to Catholic theology. Other senators joining with Senator Feinstein were Senator Durbin (D-IL) and Senator Hirono (D-HI).

It is interesting that Trump Judge nominee and confirmed, Judge Ralph Erickson of the U.S. Court of Appeals for the Eighth Circuit, who chairs the committee behind the draft opinion. That opinion to change the code of conduct is found here. (important read)

Simply put, Judge Erickson has enlisted a panel to challenge the Federalist Society.

The proposed rules change is the latest salvo in a campaign to cast the Federalist Society as too political, and thereby politically risky, for judiciary participation. The Wall Street Journal editorial board labeled the proposal “judicial political mischief masked in high sounding rhetoric,” a step that is spurring a backlash among “judges and others” who should denounce it as “undermining legal education in America and perhaps violating the First Amendment right of association.”

Conservative activists put it more bluntly, calling the rules change a transparent attempt to neuter the Federalist Society. The motivation is obvious, these activists say, after the Senate has confirmed a record number of Trump-appointed judges, many of whom are Federalist Society members or have participated in the group’s events.

“This rules change was probably instigated and driven by people who are upset with the transformation that is taking place in the federal judiciary, and since they are on the left, they are accustomed to addressing problems by trying to censor the other side,” a longtime Federalist Society member told RealClearPolitics. “And that’s exactly what this is — an act of censorship.”

Carrie Severino, the chief counsel and policy director for the conservative Judicial Crisis Network, said the new rule would create a different standard for judges than they have been held to in the past and severely limit their civic participation.

“Obviously there are situations that do require recusal – if someone is involved in a political campaign or directly advocating for a political position,” she said. “But simply being in a group that believes in certain principles — they are misconstruing the Federalist Society by calling it a group that takes political positions.” Read more here.

 

 

 

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.