1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC., Plaintiff,

v. Civil Action No. 12-1510 (JDB) U.S. DEPARTMENT OF JUSTICE,

Defendant.

ORDER This Freedom of Information Act (“FOIA”) case, concerning Operation Fast and Furious documents, has been stayed pending developments in another case in th is district—involving the same documents—since February 2013. Plaintiff, J udicial Watch, Inc., (“Judicial Watch”) has moved to lift the stay. For the reasons explained below, the Court will grant in part Judicial Watch’s motion and part ially lift the stay.

BACKGROUND In 2011, the House Oversight and Government Reform Committee (the “House Committee”) issued a subpoena to the Attorney General of the United States, seeking documents related to a congressional investigation into a Bureau of Alcohol, Tobacco, Firearms and Explosives operation known as Operation Fast and Furious. In response, President Barack Obama invoked executive privilege. The House Co mmittee filed suit, seeking to enforce its subpoena and to challenge the Pr esident’s assertion of executive privilege; that case is pending before Judge Amy Berman Jackson, another judge in this district. See Comm. on Oversight &2 Gov’t Reform, U.S. House of Representatives v. Holder, No. 12-1332 (A BJ) (D.D.C. Aug. 13, 2012) (“House Committee”). Soon after the President invoked executive pr ivilege, Judicial Watch submitted a FOIA request for all records subject to that claim of executive privileg e (in other words, for the very same records that are the subjec t of House Committee). See Pl.’s Compl. [ECF No. 1] at 2. The Department of Justice (“DOJ”) denied that reques t. Id. at 2-3. Judicial Watch then filed suit, challenging that denial. This Court stayed the case in February 2013, in part “to allow ongoing settlement discussions [to conti nue] and, if a full settlement is not reached, to let the House Committee court rule on the [then-pending] motion to dismiss.” Feb. 15, 2013 Order Staying Case [ECF No. 20] at 4. In the Order granting the stay, this Court explicitly noted that DOJ “does not seek, and the Court will not award, an i ndefinite stay pending ultimate resolution of the House Committee litigation,” and th at “the benefits of delaying this case might well [become] too attenuated to justify any further delay.” I d. Since that Order, the Court has periodically reconsidered whether to extend the stay, and has found each time that c ontinuing the stay is appropriate. See, e.g., Minute Order of Oct. 11, 2013. For a while, Judicial Watch opposed extension of the stay, an d after the Court again continued th e stay in November 2013, Judicial Watch appealed. Judicial Watc h v. U.S. Dep’t of Justice, No. 13-5337 (D.C. Cir. Nov. 8, 2013). The D.C. Circuit dismissed that appeal for l ack of jurisdiction, see May 27, 2014 Mandate [ECF No. 34], after which Judicial Watch represente d several times that continuing the stay was appropriate, see, e.g., Joint Stat us Report [ECF No. 33] at 1-2.

While all this was going on, Judge Jackson denied DOJ ’s motion to dismiss in House Committee, and the parties in that case then fu lly briefed and argued cross-motions for summary3 judgment. Settlement discussions there, while ongoing, have not b een fruitful, and Judge Jackson has not ruled on the recently fi led summary judgment motions. Following oral argument on the cross-mo tions for summary judgment in House Committee, Judicial Watch reversed its position on th e propriety of the stay here. It now asks this Court to lift the stay and for th is litigation to proceed as a norm al FOIA case would, starting with an order from the Court that DOJ produce a Vaughn index. See genera lly Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). DISCUSSION Whether to grant or lift a stay is discreti onary, but “[o]nly in rare circumstances will a litigant in one cause be compelled to stand aside wh ile a litigant in another settles the rule of law

that will define the ri ghts of both.” Landis v. N. Am. Co., 299 U.S. 248 (1936); see Am. Life Ins. Co. v. Stewart, 300 U.S. 203, 215 (1937) (citing Landi s, 299 U.S. at 255) (“in the exercise of a sound discretion [a court] may hold one lawsuit in abeyance to abide the outcome of another, especially where the parties and the issues are the same”); see also Colorado River Water Conserv. Dist. v. United States, 424 U.S. 8 00, 817 (1976) (“As between federal district courts . . . the general principle is to avoid duplicative litigation”); Stark v. Wickard, 321 U.S. 288, 310 (1944) (noting that if “numerous parallel cases are filed, the courts have ample authority to stay useless litigation until the determination of a test case”). Here, “[t]he Government’s initial request for a stay was to avoid interference with another case—a case of public importance—and this present[s] strong cons ideration for [a] stay.” Dellinger v. Mitchell, 442 F.2d 782, 787 (D.C. Cir. 1971). And unlike in other cases where a stay could harm plaintiff’s case, here, Ju dicial Watch risks little prejudice “resulting from the loss of evidence, including the inability of witnesses to recall sp ecific facts, or the possible death of a party.”4 Clinton v. Jones, 520 U.S. 681, 708 (1997). Neverthe less, Judicial Watch should be required to sit on the sidelines here only for compelling reasons. Avoiding interference w ith the House Committee case, and allowing negotiations between two co-equal branches of government to proceed undisrupted, is this Court’s chief concern in considering whether to lift the stay. There are ma ny good reasons not to decide the constitutional ques tion(s) lurking here 1 before Judge Jackson does. The litigants in House Committee are competing branches of government. Resolution of subpoena disputes between the legislature and the executive involves a sensitiv e process of negotiatio n and accommodation. See United States v. AT&T Co., 567 F.2d 121, 130 (D.C. Cir. 1977) (“The Constitution contemplates such accommodation. Negotiation between the two br anches should thus be viewed as a dynamic process affirmatively furthering the constitutional scheme.”). If any court is to resolve a dispute between the political branches over executive priv ilege—and historically, such disputes have been resolved through negotiation rather than by reso rt to the judiciary—it should be, in the first instance, the court hearing the case in which both branches are represented. That is not this case. Moreover, it is not efficient fo r two judges in the same district to simultaneously resolve the same complex privilege question. What is more , House Committee is the earlier-filed suit, and that case has advanced to the point where the issues may be decided in the near future (subject to any appeals).

But this Court now concludes that this cas e may proceed without interfering with House Committee or upsetting the delicate balance of power between the br anches. To fully resolve this FOIA dispute, absent any settlement, the Cour t will have to determine many issues logically antecedent to any constitutional question. That is because House Committee and this case are in very different procedural postures. In H ouse Committee, DOJ is refusing to produce any

1 Those questions involve the validity and scope of th e executive privilege asserted by the President.5 documents to the House Committee pursuant to a claim of executive privilege. The parties are litigating whether that privileg e claim was proper, whether it covers all the documents being withheld, and whether the House Committee may def eat that privilege. Constitutional issues are thus teed up for resolution there. Here, DOJ is withholding every document under FOIA Exemption 5. That provision exempts from disclosure any “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). So if, for example, a doc ument is protected by a va lid claim of attorneyclient privilege, it will normally and properl y be withheld under Exemption 5. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). So too if a document is protected by a valid claim of executive privilege. Id. Another frequently cited rationa le for withholding documents under Exemption 5 is the common-la w “deliberative process” privile ge. Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006). Under that privilege, documents may be withheld if they are “predecisional” and “de liberative.” Id. Other reas ons justify withholding documents under Exemption 5 as well (e.g., attorn ey work-product), as its text makes plain. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 864 (D.C. Cir. 1980). DOJ claims here that, in addition to other Exemption 5 rationales, at least two distinct

forms 2 of executive privilege justify withholding documents: a “d eliberative process” privilege of constitutional dimensions and a “congressional response work-product” privilege. See Mem. in Supp. of Def.’s Mot. for Summ. J., Hous e Committee, No. 12-1332 [ECF No. 63] (“House Committee Def.’s Mot.”) at 21- 27, 27-30. It appears that neith er form has been expressly

2 DOJ contends that these are differing justifica tions for, not forms of, executive privilege. House Committee Def.’s Mot. at 20 (“[t]here is only one Exec utive Privilege, grounded in the Constitution”). Without opining on the correctness of DOJ’s formulation, the Court notes that it will refer to different forms of executive privilege for simplicity’s sake.6 recognized by any court. Id. (ci ting Senate Select Comm. on Pr es. Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974)). The contours of the constitutionally based “d eliberative process” privilege seem plain: a document must, at minimum, be “predeci sional” and “deliberative.” See House Committee, No. 12-1332, May 15, 2014 Tr. of Oral Arg. [ECF No. 79] at 52-53 (attorney representing DOJ confirming that those are two el ements of constitutional deliberative process privilege). The purported “congressional respons e work-product” privilege would cover a broader range of documents. See Hous e Committee Def.’s Mot. at 27-30. Importantly, the narrower constitutional pr ivilege claimed by DOJ —the constitutional “deliberative process” privilege—appears to ov erlap with the traditional FOIA “deliberative process” privilege. In other word s, if a document is both “prede cisional” and “deliberative,” it may be withheld under FOIA; it also would qu alify as privileged under DOJ’s conception of executive privilege. 3 But because DOJ could refuse to releas e that document to Judicial Watch in this case simply because it is exempt under gard en-variety deliberative process privilege, the

Court need not reach the constitutional privilege question for that document. Setting aside documents that would be exempt under FOIA’s deliberative process privilege, DOJ might withhold ot her documents in this case unde r Exemption 5 for reasons other than executive privilege. Imagine a document that is not predecisional and de liberative but that is protected by the attorney-client privilege. Ot her documents might also be protected from disclosure by other FOIA exemptions, to the extent DOJ has not waived its right to assert them. Perhaps these exemption claims will permit DOJ to properly withhold all documents in this case. If so, that would end this case without any inquiry into executive privilege. But perhaps

3 The Court does not opine on the existence or scope of that privilege; instead, the Court simply notes DOJ’s arguments that a constitutionally-based “deliberative process” privilege exists and that it encompasses, at least, “predecisional” and “deliberative” documents. See House Committee, No. 12-1332, May 15, 2014 Tr. of Oral Arg. [ECF No. 79] at 52-53.7 a Vaughn index or further litigation would rev eal that some documents are not covered by deliberative process privilege—constitutionally ba sed or otherwise—and are not exempt for any other reason under FOIA except perhaps for the congressional-r esponse-work-product executive privilege claim DOJ has identified. Picture a docum ent that is not predecisional and deliberative, that does not otherwise satisfy Exemption 5, and that is not covered by any other FOIA exemption. 4 DOJ might continue to withhold that document only because it is arguably the subject of a congressional-response-work-product executive privilege claim, and thus exempt under Exemption 5. To decide whether that documen t must be released, the Court would have to determine whether the executive privilege claim is valid and that it co vers the document. Put differently, this Court needs to c onsider the executive privilege issue in this case only if no other reason permits DOJ to withhold a particular document under FOIA. Thus, much is left to do here before this Court would reach any issues being addressed in House Committee or in the negotiations between the political branches. In this circuit, when an agency is withholding documents under exemption claims, courts re quire that the agency provide a Vaughn index so that the FOIA requester—at a distinct informational disadvantage—may test the agency’s claims. See Am. Civil Libertie s Union v. CIA, 710 F.3d 422, 432 (D.C. Cir. 2013). Vaughn indices were designed to allow the agency “to justify its actions without compromising its original withholdings by disclosing too much information. . . . By allowing the agency to provide descriptions of withheld documents, the index gives th e court and the challenging party a measure of access without exposing the withheld information.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006). True, nothing in th e subpoena enforcemen t context of House Committee would require DOJ to produce a part icularized description of the withheld

documents. See Comm. on Judiciar y, U.S. House of Representatives v. Miers, 558 F. Supp. 2d

4 Again, to the extent DOJ has not waived its right to assert other exemptions.8 53, 107 (D.D.C. 2008). But this is a FOIA cas e, and since 1973, when Vaughn was decided,

courts in this circuit have required agencies to justif y their FOIA withholdings on a particularized basis. 5 And doing so here will not prematurely expose or resolve the executive privilege issues ahead of Judge Jackson and th e political branches; it will merely permit the parties and this Court to cull fr om the dispute any documents as to which a valid, non-executiveprivilege reason for withholding exists, thereby na rrowing or perhaps even resolving the case. To the extent DOJ argues that the mere production of the Vaughn index—not involving the release of any documents in dispute—woul d alter the historical balance of powers between the branches, any unbalancing would result from FOIA itself, a law passed by Congress and signed into law by the President, and which this Court cannot ignore forever. Because many of the issues to be resolv ed in this case do not overlap with House Committee, and because resolving those issues w ill not risk upsetting the delicate balance of powers in subpoena disputes betw een the political branches, th e Court will require DOJ to produce a Vaughn index here. That index should sa tisfy the law of this circuit, permitting Judicial Watch to test DOJ’s exemption claims without exposing the withheld information. See Am. Civil Liberties Union, 710 F.3d at 432-433 (describing requirements of a Vaughn index). DOJ should focus in particular on explaining its reasons, if any, other than executive privilege 6 for withholding documents. Once Judicial Watch ha s a chance to review that index, and engage in discussions with DOJ to narrow the issues, the Court will set a briefing schedule to resolve

5 Agencies frequently assert in FOIA litigation that “categorical withholding” of documents is proper, and that they need not even produce a Vaughn index as a result. But categorical withholding is appropriate “[o]nly when the range of circumstances included in the category ‘characteristi cally support[s] an inference’ that the statutory requirements for exemption are satisfied.” Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 893 (D.C. Cir. 1995). A common example is documents withheld under FOIA Exemption 7(C)—not at issue in this case—involving investigatory records compiled for law enfo rcement purposes, disclosure of which would constitute an unwarranted invasion of personal privacy. Id. 6 To be precise, reasons other than DOJ’s claimed “deliberative process” privilege of constitutional dimensions, since documents fitting into that category very likely may be withheld under the common-law deliberative process privilege.9 any outstanding non-constitutional issues. Only after the Court has resolved those issues will it turn to any issues involving execu tive privilege; by that time, Judge Jackson will likely have ruled on the issue, providing this Court with guidance, or the poli tical branches may have settled their dispute. To be clear, the Court is not ordering the rel ease of any documents currently being withheld in this litigation or in House Committ ee. But it is time for this case to move forward. Upon consideration of [35] Judici al Watch’s motion to lift the st ay, the various memoranda filed by the parties, the hearing held on July 8, 2014, and the entire reco rd herein, and for the reasons explained above, it is hereby ORDERED that [35] Judicial Watch’s motion to lift the stay is GRANTED IN PART ; it is further ORDERED that the Department of Justice shall submit a Vaughn index in accordance

with this Order and the law of this circuit by not later than Octobe r 1, 2014; it is further ORDERED that this case shall remain STAYED , except for the further proceedings set out in this Order; it is further ORDERED that the parties shall file a joint status report with the Court within fourteen days of any significant development in House Committee, but in any event by not later than October 15, 2014, at which time the Court will asse ss the future course of this case, including whether any further stay is a ppropriate; and it is further ORDERED that a party seeking an extension of the production deadline for the Vaughn

index shall file a motion in acco rdance with the Local Rules. SO ORDERED.10 /s/ JOHN D. BATES United States District Judge Dated: July 18, 2014