Court rulings suggest 'privilege' claim over 'Furious' docs would fizzle, Republicans say

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The White House and 'Fast and Furious' PR war

Is Obama administration losing the 'Fast and Furious' debate in the court of public opinion?

President Obama may have to clear a high bar in order to lock down Fast and Furious documents from the prying eyes of congressional investigators.

After the White House asserted executive privilege over potentially thousands of documents pertaining to the botched anti-gunrunning operation, critics of the move pointed out that the federal appeals court in the nation's capital has taken a skeptical view toward privilege claims in the past.

The D.C. appeals court in 2004 rejected a privilege claim made by the George W. Bush White House pertaining to Justice Department documents dating back to the Clinton administration.

That case involved a different type of claim, but a 1997 opinion from the same court made an observation that could come back to haunt the Obama administration if the current case ends up before the federal judiciary.

"The privilege," the court wrote, "disappears altogether when there is any reason to believe government misconduct occurred."

Rep. James Sensenbrenner, R-Wis., former House Judiciary Committee chairman, released a memo earlier this week citing that very line and decrying the administration's argument as bunk.

"The president's assertion of executive privilege is an illegal attempt to avoid responsibility for the department's misconduct," Sensenbrenner said.

He wrote in his memo that the privilege "cannot be used to protect documents in the face of wrongdoing."

As congressional Republicans pursue their contempt of Congress case against Attorney General Eric Holder -- potentially with a vote on the House floor this coming week -- the push to extract thousands of Fast and Furious documents from the Justice Department is expected to continue. And the D.C. federal courts would likely be asked to weigh in if a deal cannot be reached.

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Rep. Louie Gohmert, R-Texas, told Fox News on Saturday the president's executive privilege claim will trigger a civil suit "that we will file in federal court in D.C."

Gohmert said Republicans will demand a "log" of all documents the White House is trying to lock down. "There may not be anything that's privileged," he said.

But despite all the tea-leaf reading, it would be impossible to judge the outcome of any court challenge based on past rulings -- as there is no case identical to the current dispute between Congress and the Executive Branch over Fast and Furious.

The Obama administration has outlined a robust case for its assertion of executive privilege.

Officials are invoking the claim based on so-called "deliberative process" -- a claim that argues internal deliberations can be kept secret so as not to inhibit open and candid discussion. That's what the Obama administration says Republicans are looking for here.

"I am very concerned that the compelled production to Congress of internal Executive Branch documents generated in the course of the deliberative process concerning its response to congressional oversight and related media inquiries would have significant, damaging consequences," Holder wrote in his letter Tuesday to Obama requesting the president's intervention.

He said the documents "fit squarely within the scope of executive privilege." Further, he referenced opinions that a congressional committee can overcome this only by showing the documents are "demonstrably critical" to its duties. Holder said this has not been shown.

But Tom Fitton, president of the conservative watchdog Judicial Watch, said the documents likely "won't be protected."

He pointed to the case involving his group -- the one from 2004 -- and said the court decision conflicts with the Obama administration's current claims.

As in the current case, the 2004 case involved an attempt by the White House to lock down Justice Department documents. That case, however, involved a different type of executive privilege claim -- the Bush White House was trying to invoke the "presidential communications privilege" over documents pertaining to pardons issued under the Clinton administration. The court ruled that the claim didn't work, because the documents in question never made their way to the president's office.

The court opened the door for the Bush administration to consider invoking the "deliberative process privilege" instead -- which it did.

That is the precise category of "privilege" that Obama and Holder are now invoking to withhold Fast and Furious documents. Fitton, though, nevertheless remained convinced that the administration's "deliberative process" claim was different and would not pass muster in the face of the lingering questions surrounding Fast and Furious.

"Either way," he said, "the courts look askance at using the privilege to stymie probes into misconduct."

Fitton, too, referenced the 1997 opinion, which said: "Where there is reason to believe the documents sought may shed light on government misconduct, 'the privilege is routinely denied,' on the grounds that shielding internal government deliberations in this context does not serve 'the public's interest in honest, effective government.'"

But again, the 1997 case and the current dispute are different.

The 1997 case involved not a dispute between lawmakers and the Executive Branch but a dispute between the Office of the Independent Counsel and the White House over a criminal case involving a former secretary accused of corruption.

In that case, clear "misconduct" was alleged, whereas it's unclear today what the "Furious" documents under lock and key contain.

Scott Coffina, an attorney in private practice who used to serve in the office of White House counsel in the George W. Bush administration, said this would be a gray area for the courts. He said it is "untested" whether bad policy decisions surrounding Fast and Furious would qualify as "misconduct," and in turn compel disclosure.

Coffina said he supports the principle of withholding deliberative documents, because "there's an institutional need for the Executive Branch to be able to conduct investigations." But he also said that because of the sheer volume of documents at issue, "I guarantee you they're not all deliberative."

Meanwhile, Democrats on the House committee probing Fast and Furious on Friday filed a report stating unequivocally their opposition to the contempt proceedings against Holder.

"The Committee's contempt vote on June 20, 2012, was the culmination of one of the most highly politicized congressional investigations in decades," they wrote, referring to the committee vote along party lines to hold Holder in contempt.

"The Committee has repeatedly shifted the goalposts in this investigation after failing to find evidence to support its unsubstantiated allegations. The documents at issue in the Contempt Citation are not related to the Committee's investigation into how gunwalking was initiated and utilized in Operation Fast and Furious."

Fox News' Catherine Herridge contributed to this report.