A U.S. Justice Department lawyer said on Wednesday that if a judge agreed to consider a Republican bid to get administration documents related to a botched operation against gun-trafficking it would prompt a flood of requests for courts to referee Washington political disputes.
President Barack Obama is resisting a congressional subpoena for documents related to how the administration responded to the revelation of the failed operation known as "Fast and Furious" on the U.S.- Mexican border. It has already turned over thousands of pages of documents about the operation itself.
Justice Department lawyer Ian Gershengorn told a hearing the matter was best left to the give-and-take of the U.S. government's two elected branches, the president and Congress, and should not be a matter for the courts.
"That is how it has worked for 225 years," said Gershengorn, referring to the ratification of the U.S. Constitution in 1788.
U.S. District Judge Amy Berman Jackson was skeptical and told Gershengorn, "There are three branches here, not just two." She did not say how she would rule, but questioned Gershengorn for more than twice as long as she did House of Representatives lawyer Kerry Kircher.
Kircher told Jackson that if she did not intervene, presidents could withhold documents from Congress at will with no consequence and thwart oversight of government agencies.
The fear about more subpoena cases is overblown, he added. "You will not be flooded by lawsuits," Kircher said.
Both sides agree that the question of whether Jackson will step in goes to the heart of how the U.S. president and Congress interact with each other.
Lawyers cited court precedents from the Watergate era and from a more recent document fight in which Democratic lawmakers sent a subpoena to aides of President George W. Bush.
In a decision that now helps Republicans, U.S. District Judge John Bates ruled in 2008 that he did have the authority to enforce a subpoena by congressional Democrats in connection with the firing of nine U.S. attorneys.
In the "Fast and Furious" operation federal agents trying to build a case against big gun traffickers supplying firearms to Mexican drug cartels did not immediately prosecute low-level traffickers even as they bought 2,000 potentially illegal guns.
The operation came to light after two of the firearms were found in Arizona at the scene of a shooting where a U.S. Border Patrol agent died.
Gun rights activists denounced the operation as part of a broader gun control agenda by the Obama administration and urged Republicans to investigate.
A report by the Justice Department inspector general faulted the operation's tactics but dismissed accusations of wrongdoing against U.S. Attorney General Eric Holder.
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