For two hundred years, disputes over congressional requests for Executive Branch information have followed a common trajectory. Ordinarily, the Executive Branch provides information responsive to legitimate legislative inquiries while withholding material that implicates important Executive Branch prerogatives. Both sides seek to balance Congress's legitimate investigative concerns against the important confidentiality concerns of the Executive. The strength and nature of Congress's desire for information and the Executive's desire for confidentiality shift over the course of the negotiations, for a host of reasons. The resulting "accommodation process" between the two co-equal Branches is political, and often disorderly and contentious, and the ultimate resolution often reflects a variety of considerations and compromises on both sides. But it is precisely the inherently political nature of the process of confrontation and resolution that makes it ill-suited for judicial review.

Operation Fast and Furious was a failed DOJ investigation involving tracked guns that were permitted to travel from Arizona to Mexico in an attempt to stop weapons trafficking by high-level arms dealers. In June the DOJ announced that it will not prosecute Holder after the Oversight Committee voted to hold him in contempt of Congress [JURIST reports] for failing to comply fully with the committee's subpoenas. Upon being held in contempt Holder responded [press release], "Today's vote is the regrettable culmination of what became a misguided—and politically motivated—investigation during an election year," and stated he would continue to focus on the government's job of protecting the American people. Obama ultimately asserted executive privilege on the subpoenaed documents, effectively rendering the contempt charge moot. The DOJ submitted a joint staff report [text, PDF] to the committee in July 2011, discussing the effects of the admittedly failed operation in Mexico. The committee began investigating the operation [press release] through the DOJ's Bureau of Alcohol, Tobacco, Firearms, and Explosives [official website] in April of that year.