The Justice Department said it will not bring the criminal contempt charges against Attorney General Eric Holder before a grand jury because his actions do not constitute a crime, according to a letter sent to House Speaker John Boehner (R-Ohio).
The letter, signed by Deputy Attorney General James Cole, says that President Barack Obama’s assertion of executive privilege over the documents at the heart of the criminal contempt citation precludes the department from prosecuting the case.
“The department has determined that the Attorney General’s response to the subpoena issued by the Committee on Oversight and Government Reform does not constitute a crime,” Cole wrote. “And therefore the Department will not bring the congressional contempt citation before a grand jury or take any other action to prosecute the Attorney General.”
The move was expected, but the House also voted on Thursday to authorize the Oversight Committee to force the disclosure of the Operation Fast and Furious documents in civil court. The House voted 255-67 to find Holder in contempt of Congress over his refusal to produce documents related to the botched gun-walking operation.
On Friday, Sen. Charles Grassley (R-Iowa), who has been involved in the congressional inquiry from the beginning, sent a letter to District of Columbia U.S. Attorney Ronald Machen. If he is indeed a suitable candidate to investigate recent national security leaks, he must first prove himself by acting independently on the contempt measure, Grassley wrote.
Grassley, unsatisfied with Cole’s letter, told Machen it is his responsibility to bring the matter before a grand jury.
“It is not optional,” he wrote. ”Moreover, the law clearly assigns that duty to you and to no one else.”
Last week, 31 Republican lawmakers asked the Attorney General to assign a special counsel with “bipartisan acceptance and widespread public trust” to investigate recent high-level national security leaks.
The Attorney General has remained a stalwart defender of his choice to appoint Machen and Maryland U.S. Attorney Rod Rosenstein to investigate the leaks, characterizing both attorneys as experienced and capable.
After he assigned the duo to oversee the investigation, he said: “I have every confidence in their ability to doggedly follow the facts and the evidence in pursuit of justice wherever it leads.”
Now, Machen has an opportunity to test his mettle.
“Your independence and integrity were cited as the reason that there was supposedly no necessity to appoint a special prosecutor,” Grassley wrote on Friday. ”This matter gives you an opportunity to live up to that high praise and prove your independence.”
But Grassley writes that he is skeptical of “how this has been handled so far,” saying Machen’s shirking of actively pursuing the contempt charges “suggests no such independence at all.”
He has asked the U.S. Attorney to provide detailed answers to questions about his involvement with the Justice Department, senior White House officials and the contempt citation; whether or not he has been instructed to present the contempt citation to a grand jury; if he has independently decided not to present the contempt citation; whether or not he has conducted an independent review of the contempt charges; and whether or not he has been provided with the documents the Attorney General has withheld.
The Obama Administration has come under fire for a series of leaked classified information. The New York Times has written about an alleged “kill list,” the administration’s cyber attacks against Iran and details on drone strikes earlier this month.
At a Senate Judiciary Committee hearing earlier this month, Republicans hammered the Attorney General for not appointing an outside special investigator.
“On a matter of this seriousness, there is clear precedent to appoint an outside special counsel when there is the potential for a conflict of interest, the specter of political influence, or other extraordinary circumstances,” the lawmakers wrote in a letter earlier this month.
Democratic lawmakers have supported the Attorney General’s move, saying a special investigator would not investigate the matter swiftly enough.