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Any Contempt Charges Against Holder Not Likely to End in Criminal Court
By Elizabeth Murphy | May 3, 2022 5:41 pm

Experts in House of Representatives procedure say the contempt of Congress citation being prepared against Attorney General Eric Holder is not likely to go any further than the chamber’s doors.

Republican House Oversight Committee members took the first step Thursday in bringing contempt of Congress charges against Attorney General Eric Holder, in what they believe has been a refusal from the Justice Department to comply with its investigation of Operation Fast and Furious.

Committee Chairman Darrell Issa (R-Calif.) released the 44-page draft to all members of the committee, saying it would be discussed at a future hearing. The department is under subpoena for documents pertaining to the botched gun-tracing operation that Holder has said was “fundamentally flawed.” The operation aimed to track guns bought by straw-buyers in the United States and then smuggled into Mexico. One such gun from the investigation was found at the scene of a shootout on the Arizona-Mexico border that left one U.S. Border Agent dead. The contempt draft calls the operation a story of “widespread dysfunction across numerous components of the Department of Justice.”

“The Departments’ efforts at accommodation and ability to work with the Committee regarding its investigation into Fast and Furious have been wholly inadequate,” the draft proposal reads. “The Committee requires the subpoenaed documents to meet its constitutionally mandated oversight and legislative duties.”

Experts on this congressional tool said it’s been in use for hundreds of years, but the charges against Holder, if approved by the full House, are unlikely to see the light of day inside a courtroom. While criminal charges are unlikely, the experts said, the GOP-controlled House does have recourse with civil litigation.

The committee has requested thousands of documents from the department as it continues its congressional inquiry into the handling of the operation. The draft states that there are countless more documents under subpoena, but the Justice Department has told the committee that much of that information is part of ongoing investigations and cannot be released.

A department spokeswoman said the type of information the department is not releasing has historically been kept under seal to ensure the integrity of ongoing criminal investigations and prosecutions. She also said it’s important to note that the attorney general has appeared seven times in the last year and a half on this matter. To date, the department has handed over more than 7,600 pages of documents to the committee’s staff.

The contempt draft, however, states that the department’s blockage of certain documents is “inexcusable and cannot stand.” The draft citation continues: “Those responsible for allowing Fast and Furious to proceed and those who are preventing the truth about the operation from coming out must be held accountable for their actions.”

Donald Wolfensberger, director of the Congress Project at the Woodrow Wilson International Center for Scholars, said in an interview with Main Justice that history shows in contempt cases of Executive Branch members that contempt charges are often initiated by the opposite party of the administration.

Charles Johnson, the House Parliamentarian from 1995 to 2005, said in an interview with Main Justice that the contempt of Congress power is long-standing, but it is seldom used against cabinet officials.

He said politics are the “nature of the House,” but at the same time, it has valid investigative authority in these instances, regardless of the party. Typically, Johnson said, a contempt order is submitted to a House committee, whereupon it is debated and voted on. If it is approved by a majority vote, it is sent to the full House for consideration. It will then be debated by the full chamber like any other resolution on the floor and again requires the majority to be approved.

From there, the House Speaker would turn it over to the U.S. Attorney for the District of Columbia to enforce. As per the federal law laid out in the U.S. Code, it is the U.S. Attorney “whose duty it shall be to bring the matter before the grand jury for its action.”

If found guilty, the federal crime, a misdemeanor, dictates a maximum fine of $1,000 and up to 12 months in prison.

Johnson said likely the most similar case is that of President Bill Clinton’s Attorney General, Janet Reno. In 1998, the House Oversight Committee voted to cite Reno with contempt of Congress in connection with the disclosure of documents related to Clinton’s impeachment. The full House never voted on the resolution, however, and the contempt citation did not move forward.

If the contempt citation were to make it through the committee and the full House, it seems unlikely that District of Columbia U.S. Attorney Ron Machen would indict his own boss, Johnson said. Not only would it be a potential conflict of interest, but a Democratic U.S. Attorney would have no incentive to indict a Democratic Attorney General — especially if the contempt charges were considered to be politically motivated.

If the contempt charges were approved by the full House, and the Justice Department refused to bring the charges to a grand jury, the body could bring a civil lawsuit to enforce the subpoenas, Johnson said.

Most recently, in 2008, the full House - then led by Democrats — voted to find former White House Counsel Harriet Miers and Chief of Staff Joshua Bolton in contempt of Congress in a probe of what the Department of Justice 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.

UPDATED: The Justice Department sent a letter to Issa late Thursday, saying it is following legal precedent articulated by the Office of Legal Counsel chiefs during administrations of both parties.

“Viewed fairly, the disagreements between the Committee and the Department over the scope of the documents to be produced stem not from a lack of cooperation, but from our sincere and unwavering belief that disclosure of materials related to ongoing criminal investigations and prosecutions could well jeopardize our core law enforcement mission, which must remain free from political pressure or even the appearance of political pressure,” the letter states.

It continues: “Despite the differing views cunrently held by the Committee and the Department, we continue to believe that efforts to arrive at a mutually acceptable resolution have not been fully exhausted. The Committee, in our view, has not taken sufficient steps to deflne the categories of documents it deems essential to its review of Fast and Furious and its decision to issue a draft contempt citation appears to express a preference for confrontation over resolution. The Constitution establishes  branches of government with interlocking responsibilities and imposes on the officials of those branches the obligation to resolve conflicts in good faith. We remain willing to Work with the Committee in good faith in an effort to avoid this impasse.”


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"We believe the program is constitutional as previous judges have found. We have no further comment at this time.” -- DOJ spokesman Andrew Ames on Klayman v. Obama, which found the NSA phone program likely unconstitutional.