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Tuesday, November 19, 2013

Judge won't allow Holder appeal now in contempt case -- By Josh Gerstein, Politico

A federal judge has refused Attorney General Eric Holder's request that he be allowed to proceed now with an appeal in a case where the House of Representatives is seeking to enforce subpoenas for documents related to the controversial Operation Fast and Furious gun investigation.

In a ruling Monday afternoon, U.S. District Court Judge Amy Berman Jackson said her September 30 ruling rejecting Holder's request to dismiss the lawsuit was not such a close call that it deserved immediate review from the U.S. Court of Appeals for the D.C. Circuit.

"While the Court agrees with defendant’s characterization of the matter as significant, that is not the test," Jackson wrote in her new four-page decision (posted here). "

Jackson's latest ruling means it is likely the Justice Department will have to produce a detailed log of what was withheld from the House Oversight and Government Reform Committee and why. Rounds of protracted litigation over the legitimacy of the withholdings seem all but certain, unless the sides come to an agreement which has heretofore eluded them.

"The Court is not of the opinion that its denial of the motion to dismiss involves a controlling question of law as to which there is a substantial ground for difference of opinion," she wrote in her Monday order, issued just one business day after Holder's lawyers asked for the immediate appeal. "The ruling was based upon Supreme Court precedent and Circuit precedent, and it was decided in accordance with an opinion issued by another judge of this court in a substantially similar matter.... Defendant has not pointed to any precedent that would supply the grounds for a difference of opinion."

Jackson noted that while she was turning down Holder's request for an immediate appeal, she has yet to rule on whether any documents have been improperly withheld from the House Oversight and Government Reform Committee under a claim of executive privilege from President Barack Obama. If she makes such a finding, an appeal would be open at the conclusion of the case.

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