The Republican-controlled House Oversight and Government Reform Committee voted along party lines today to send a contempt measure against Attorney General Eric Holder to the full House, even as President Barack Obama asserted executive privilege over the Fast and Furious documents at issue.
The measure, which was approved by a 23-17 vote, also includes an amendment that includes language that the president’s assertion of privilege is months too late, is not credible and it has not included a log delineating what information is under the order.
Wednesday’s vote is the culmination of a months-long brawl between committee Chairman Darrell Issa (R-Calif.) and Holder over documents related to the botched gun-tracking investigation. Republicans alleged a pattern of “stonewalling” from the department to hide what they suspect are grave misdeeds. Democrats have called the congressional inquiry a political witch hunt during an election season, aimed at hurting the president in his bid for re-election.
Holder responded to the vote on Wednesday, saying in a statement that “the American people deserve better” and calling the stonewalling allegation “untrue.”
“This divisive action does not help us fix the problems that led to this operation or previous ones and it does nothing to make any of our law enforcement agents safer. It’s an election-year tactic intended to distract attention — and, as a result — has deflected critical resources from fulfilling what remains my top priority at the Department of Justice: Protecting the American people,” Holder said.
“From the beginning, Chairman Issa and certain members of the committee have made unsubstantiated allegations first, then scrambled for facts to try to justify them later. That might make for good political theater, but it does little to uncover the truth or address the problems associated with this operation and prior ones dating back to the previous administration.”
House Speaker John Boehner (R-Ohio) said Wednesday that he will schedule a full vote on the measure next week, unless the Attorney General discloses the materials being sought by the committee,
Deputy Attorney General’s dramatic revelation
In dramatic fashion Wednesday morning, the committee received a letter from Deputy Attorney General James Cole – with just minutes to spare before the start of the contempt hearing – that revealed that the White House had asserted its power of privilege over the Fast and Furious documents at issue. It was the first time Obama had asserted executive privilege to Congress.
“We regret that we have arrived at this point, after the many steps we have taken to address the committee’s concerns and to accommodate the committee’s legitimate oversight interests,” Cole wrote. ”The department has provided the Committee with over 7,600 pages of documents and has made numerous high-level officials available for public congressional testimony, transcribed interviews, and briefings.”
The battle concerns Justice Department documents under an October 2011 committee subpoena. The department has said further disclosures would compromise law enforcement investigations. Other documents sought concern internal deliberations not about the operation itself, but how to handle congressional and media inquiries, the department said. Republican committee members said this refusal suggests Holder is hiding something.
“I don’t think he’s hiding a damn thing,” committee ranking member Rep. Elijah Cummings (D-Md.) retorted.
Issa and Holder met Tuesday night in a last-ditch effort to avoid the contempt vote Wednesday morning. The meeting did not yield any results, however, with Issa saying the Justice Department did not disclose the documents it said it would. Holder said Issa could not promise, even if the documents were released, that the contempt vote would be delayed.
Now the measure must be debated and voted on by the whole chamber, much like any other resolution on the floor. If it is approved, Boehner would turn it over to the U.S. Attorney for the District of Columbia, Ronald Machen, to enforce. Machen is unlikely to prosecute his own boss.
Moreover, Holder has already admitted the gun-tracing operation was flawed and vowed such tactics won’t be repeated, so there is no debate on the underlying issue. The fight now is about documents showing how Justice officials responded to after-the-fact congressional and media inquiries.
If Holder is found guilty of the federal misdemeanor, he could face a maximum fine of $1,000 and up to 12 months in prison.
Common ground lacking
Before the vote, there was heated debate about whether the vote should even take place. Democrats argued that Obama’s late-in-the-game assertion of privilege required some study and reconsideration before proceeding as initially planned. A vote on the contempt measure as written might prove to be moot once the White House’s order could be studied more thoroughly, they argued. Issa said he too wanted to produce a “clean” resolution, but he said the committee could wait for the Justice Department’s delays no longer.
Rep. Dennis Kucinich (D-Ohio) said the president’s assertion of executive privilege had taken the hearing “to a whole new realm.”
“Given all your patience it would be a shame to produce a kind of titanic contest here between two branches of government if there is a way to make one more effort to avoid it,” the Democrat said, echoing the statements of many on his side of the dais.
Issa said he is prepared to do what it takes to carry out the investigation fully.
“We have narrowed contempt, we have not narrowed our need for information,” Issa said. “The vast majority of material we have not gotten we totally believe is not protected because of some compromising of ongoing criminal investigations. But to know that we would need a privilege log.”
Rep. Carolyn Maloney (D-N.Y.) said she was “personally offended” that Issa has questioned the veracity of the Attorney General. “It’s extremely disrespectful,” she said.
“Where have we degenerated to in calling names, not having hearings on meaningful reforms, not acting on meaningful reforms … and moving forward with paperwork that is unwarranted and unfair and violates the law of the United States of America?” Maloney said.
Rep. Patrick Meehan (R-Pa.), a former U.S. Attorney himself, said the refusal to disclose the documents at issue may suggest that department leadership is attempting to shift blame.
Leaders are “trying to lay this off on people further down the chain,” Meehan said. “The facts are leading us to very legitimate inquiries.”
Rep. Trey Gowdy (R-S.C.) defended the legitimacy of the day’s proceedings, as well, saying that if Congress has time to look into issues with Major League Baseball and host Comedy Central comedian Stephen Colbert, it ought to have time to look into serious allegations against the nation’s highest law enforcement official.
But Rep. Gerry Connolly (D-Va.) likened the three hours of debate to a “kangaroo court,” saying the verdict has been decided in advance and the facts bent to fit a predetermined narrative.
“This is a sad moment for this committee and for this Congress,” he said.
Outside the hearing doors, congressional stakeholders opined on the president’s late-coming assertion of privilege.
A spokesman for House Speaker Boehner said the president’s move suggests culpability of some kind.
“The White House decision to invoke executive privilege implies that White House officials were either involved in the ‘Fast and Furious’ operation or the cover-up that followed,” spokesman Brendan Buck said in a statement. The Administration has always insisted that wasn’t the case. Were they lying, or are they now bending the law to hide the truth?”
Fast and Furious was a failed gun-tracing operation headed by the Bureau of Alcohol, Tobacco, Firearms and Explosives. It aimed to track 2,000 guns sold to straw-buyers and then illegally passed to Mexican cartels. The operation backfired, however, and hundreds of guns were lost. Two guns from the operation were found at the scene of a shootout between U.S. Border Patrol Agents and Mexican bandits. Border Patrol Agent Brian Terry was killed in the gunfire. His family released a statement during the contempt proceedings on Wednesday.
Terry family condemns administration
“Attorney General Eric Holder’s refusal to fully disclose the documents associated with Operation Fast and Furious and President Obama’s assertion of executive privilege serves to compound this tragedy,” the Terry family said. “It denies the Terry family and the American people the truth.”
It added: “Our son lost his life protecting this nation, and it is very disappointing that we are now faced with an administration that seems more concerned with protecting themselves rather than revealing the truth behind Operation Fast and Furious.”
Sen. Charles Grassley (R-Iowa), who has been investigating the operation in the Senate, issued the following statement: “The assertion of executive privilege raises monumental questions. How can the President assert executive privilege if there was no White House involvement?”
Rep. Adam Schiff (D-Calif.), a former federal prosecutor, said in a statement Wednesday that the vote to move the contempt measure to the full House was “deeply ill-considered.”
“The use of Congress’s contempt power should be jealously guarded and only used with the most scrupulous care, otherwise it becomes nothing more than a rhetorical tool of partisan warfare and a paper tiger,” he said. “The Fast and Furious investigation, which had its origin in a legitimate need to get to the bottom of a botched ‘gun walking’ operation has lost its way, and is now accomplishing nothing but doing damage to the institution of Congress.”
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) echoed those comments Wednesday.
“Because Attorney General Holder has testified about Fast and Furious on many occasions, we have learned what happened and what went wrong,” the Vermont Democrat said in a statement. “The Attorney General stopped the use of inappropriate tactics that dated back to the Bush administration when he learned of them, and those responsible have been held accountable. It is time to put the focus back on helping with the Justice Department’s law enforcement efforts, including its work to stop the violence on the southern border at the hands of Mexican drug cartels.”
Allegations that top-level Justice Department personnel were aware of the controvserial tactics continue to swirl. Republicans said Wednesday that wiretaps acquired by Issa from whistleblowers clearly show that Criminal Division Chief Lanny Breuer and Deputy Assistant Attorney General Jason Weinstein were aware gun-walking was ocurring on the Arizona-Mexico border. The Justice Department has said that interpretation is incorrect.
Contempt used rarely
Contempt of Congress is a tool that is used only rarely.
In 1998, the House Oversight Committee voted to cite Reno with contempt of Congress in connection with the disclosure of documents releated to President Bill Clinton’s impeachment. The full House never voted on the resolution, however, and the contempt citation died.
In 2008, the full House — led by Democrats at the time — voted to find former White House Counsel Harriet Miers and Chief of Staff Joshua Bolten in contempt of Congress in a probe of what the Justice Department Inspector General found to be politically motivated hiring practices in the George W. Bush administration’s Justice Department. Then-Attorney General Michael Mukasey refused to pursue the contempt charges in court, saying Miers’ and Bolten’s non-compliance with the subpoenas did not constitute a crime. Eventually a compromise between the White House and the House was reached.