The chairman of a House committee has taken the rare step of scheduling a first vote on whether Attorney General Eric Holder Jr. is in contempt of Congress for refusing to turn over documents relating to the botched Fast and Furious gun-smuggling investigation.
The vote seems likely to succeed, with House Government Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) pushing aggressively for the charge. Further, he got the backing June 11 of the two top Republicans in the House, Speaker John Boehner (Ohio) and Majority Leader Eric Cantor (Va.).
But what happens if the June 20 vote passes? Bringing the contempt citation for a vote in the full Senate could result in a political circus that Republican leaders have so far seemed reluctant to push for. And after that, attempting to enforce a contempt finding could end up as a lengthy court battle, legal experts say.
“Legally, there’s no substance to it,” said Washington lawyer Stan Brand, a professor at the Pennsylvania State University Dickinson School of Law who co-authored a book on congressional investigations and oversight. “It’s all posturing, it’s all public relations.”
Brand, who served as general counsel to the House of Representatives under former House Speaker Thomas P. “Tip” O’Neill, Jr. (D-Mass.), said Congress can’t get a contempt vote enforced against a U.S. attorney general as a member of the executive branch, and that’s been the position of both Democrats and Republicans going back for 30 years.
Even if the full House voted for contempt, Congress would then have to go to the courts to seek a declaratory judgment and injunction ordering Holder to fully comply with the subpoena, and that would involve more than two additional years of legal fights, Brand said.
The last time a contempt of Congress legal battle happened was when the House voted for contempt charges in 2008, when George W. Bush administration White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers declined to testify in an investigation into the firing of U.S. Attorneys in the Bush Administration.
Eventually, a year after the declaratory action was filed, and after a federal district court judge ruled mainly in favor of the House, Bolten and Miers reached an agreement to testify and provide some documents for the investigation.
A vote against Holder could ratchet up pressure to come to some sort of agreement on providing documents. “Historically, these things almost always get worked out through negotiations,” said Josh Chafetz, an associate professor at Cornell Law School.
Robert Bennett, a partner in Hogan Lovells’ Washington and New York offices who has represented members from both political parties at Congressional hearings, said the last thing Congress needed in this political year is a high-profile contempt case as a distraction. “It serves no one’s purpose.”
Bennett said he would be surprised if the two sides were not able to work out some agreement in the next week.
So far, this scenario has seemed unlikely. Issa has subpoenaed 80,000 documents related to Fast and Furious, where federal agents let firearms travel to Mexico with the hope to track down bigger traffickers, and may have led to the death of a U.S. Border Patrol agent.
Holder and the Department of Justice have produced somewhere around 8,000 documents, and have said many others can’t be provided because they are transcripts of grand jury proceedings and other sensitive law enforcement materials, which have historically not been released.
Yet on Monday, Boehner announced: “The Justice Department is out of excuses.” In a statement, he added, “Either the Justice Department turns over the information requested, or Congress will have no choice but to move forward with holding the Attorney General in contempt for obstructing an ongoing investigation.”
Robert Raben, a former assistant attorney general for legislative affairs often subpoenaed by Congress, said that the vote and Boehner’s statement are part of a negotiating posture. “I’ve been in this fight a lot. There’s no question in my mind there’s an accommodation to be had,” Raben said.
Raben said it’s too early to tell if a full House vote is an option, especially because of the politics involved. “It will be a mean, nasty circus if they go to the floor with the first black attorney general,” he said.
Brand said he didn’t get the sense that the White House would feel any pressure from the vote next week because of the opinions from the last six attorneys general. And, he said, Republicans would have to worry about being seen as using nothing more than a “pop gun,” where “you shoot it off and nothing happens.”
Right now, the political rhetoric is hot.
“The Justice Department’s actions have obstructed the investigation,” Issa said in a written statement announcing the scheduled vote. “Congress has an obligation to investigate unanswered questions about attempts to smear whistleblowers, failures by Justice Department officials to be truthful and candid with the congressional investigation, and the reasons for the significant delay in acknowledging reckless conduct in Operation Fast and Furious.”
The ranking Democrat on the Oversight Committee, Elijah Cummings (Md.), said the move to schedule a contempt vote is “unfortunate” because federal law prohibits him from turning over many of the subpoenaed documents.
“I am guardedly optimistic that a path forward exists that will serve the legitimate interests of the Committee in conducting rigorous oversight, protect the legitimate interests of the Department in its ongoing investigations and prosecutions, and avoid the needless politicization of this very serious issue,” Cummings said.
The DOJ went on the attack in its response to Issa’s contempt vote call.
“Chairman Issa’s latest maneuver is unfortunate and unwarranted, particularly given the ongoing discussions we’ve been having with Committee staff regarding a mutually acceptable resolution to their requests for information,” DOJ spokeswoman Tracy Schmaler said. “The Committee has received information from the Department regarding how this flawed operation — and those from previous administrations — were initiated and who authorized them.”
“From the beginning, Chairman Issa has distorted the facts, ignored testimony and flung inaccurate accusations at the Attorney General and others, and this latest move fits within that tired political playbook that has so many Americans disillusioned with Washington. The Committee has ignored the fundamental — and undeniable — facts that this Attorney General put a stop to the misguided tactics, called for an investigation of this flawed operation and instituted reforms to prevent this from happening again.”
Contact Todd Ruger at firstname.lastname@example.org.