The representatives from Congress believe it is likely to be fruitless since there is no indication that the stonewallers in the administration have changed their minds about the legitimacy of Congressional oversight.
The Oversight panel, led by Rep. Darrell Issa (R-Calif.), argued that mediation with a separate federal judge would be futile because of the distance between the two sides.
“He is not motivated to compromise in a manner that will result in the delivery of useful documents to the committee in the foreseeable future [and] ... settlement simply is not possible — at least not at this time,” the committee wrote about Holder in the latest joint status report. “Further efforts along these lines would be a waste of everyone’s time.”
Assuming mediation fails, there will be a trial starting April 24th.
Congress and the White House have both won previous court battles in the past over the assertion of executive privilege. But according to legal scholars and former DOJ attorneys, the current case is unlike any other, leaving many with a theory on how it will play out but few with any firm conviction. Few, except for Issa himself.
“The committee is confident about the legal merit of its efforts to obtain documents President Obama and the Justice Department have wrongly withheld,” said Frederick Hill, a spokesman for Issa and the panel’s Republicans, in a statement. “The committee intends to fully pursue its legal options.”
Scott Coffina, a former associate counsel to Bush and current partner with D.C. firm Drinker, Biddle & Reath, said the case is extremely important because it could set a new precedent for what information Congress has a right to access.
“There’s a very important prerogative from both branches at stake in a decision like this: the assertion of executive privilege in future cases and Congress’s right to insist on getting full, complete, and accurate information when they’re conducting investigations,” said Coffina.
Further muddying the waters are comments Holder made in a recent interview with ABC News, which the committee refers to in its joint status report. Holder said he didn’t have respect for the lawmakers who voted to place him in contempt of Congress last year.
Issa has called the comments “arrogantly dismissive,” and Grassley, who did not vote on the House contempt measure, has called for an apology.
Holder and DOJ say they are optimistic that a deal can be reached through mediation.