Bloomberg News

House Makes Holder First Cabinet Member Cited in Contempt

June 29, 2012

The U.S. House cited Attorney General Eric Holder in contempt of Congress for refusing to provide documents about a federal gun operation and authorized its lawyers to wage a court battle to get them.

Republicans said Holder didn’t comply with a subpoena for material from the Fast and Furious operation, which allowed illegally purchased firearms from the U.S. to wind up at crime scenes in Mexico. President Barack Obama has asserted executive privilege over the documents and declined to turn them over.

The 255-67 vote yesterday, which made Holder the first Cabinet member ever held in contempt by either chamber of Congress, follows steady Republican criticism of the nation’s top law enforcement officer. More than 100 Republican lawmakers have called for Holder’s resignation over his handling of Fast and Furious, terrorism and other matters. Many Democrats didn’t vote and walked off the House floor in protest.

The contempt citation, which doesn’t need Senate approval, now goes to the U.S. attorney in Washington to determine whether criminal prosecution is warranted. The Washington prosecutor, Ronald Machen, is an Obama nominee who probably won’t pursue the matter after Obama claimed executive privilege over the documents last week, said Josh Chafetz, a professor at Cornell Law School in Ithaca, New York.

Executive privilege is a principle that says the executive branch can’t be required by Congress to disclose confidential communications because their release would harm the operations of the White House.

‘Political Theater’

In a statement after the vote, White House spokesman Dan Pfeiffer said House Republicans “pushed for political theater rather than legitimate congressional oversight.” Separately, Holder called the House’s contempt citation “the regrettable culmination of what became a misguided and politically motivated investigation during an election year.”

Two Republicans, Steve LaTourette of Ohio and Scott Rigell of Virginia, joined 65 Democrats in opposing the contempt citation while 17 Democrats supported it. Before the roll call most of the 108 Democrats who didn’t vote, including Minority Leader Nancy Pelosi of California, walked out of the chamber to protest the resolution.

Lawmakers then voted 258-95 to authorize a civil lawsuit to force Holder to turn over the documents. Both LaTourette and Rigell supported the civil enforcement resolution.

The Democratic-controlled House took a similar step in 2008 after the Justice Department declined to pursue contempt proceedings against advisers to President George W. Bush.

‘Can’t Win’

The Bush administration had asserted executive privilege when the House Judiciary Committee subpoenaed then chief of staff Josh Bolten and former White House counsel Harriet Miers for information regarding the firing of nine U.S. attorneys.

The standoff was ultimately resolved a year later after the Obama administration negotiated a deal. The case could have lasted far longer had the Bush administration pursued additional appeals, Chafetz said.

“The lesson for the House is they can’t win in court,” Chafetz said.

LaTourette, an Ohio Republican, said the criminal contempt citation will only “embolden people to do the same” once there is a Republican attorney general.

“These things have a funny way of coming back around at you,” he said.

California Republican Darrell Issa, chairman of the House Oversight and Government Reform Committee, has led the congressional Fast and Furious probe and pressed Republican leaders to act against Holder.

Documents Sought

The House is seeking documents describing internal Justice Department discussions about a February 2011 letter to lawmakers that Holder later said mistakenly contained incorrect information. The letter said the Bureau of Alcohol, Tobacco, Firearms and Explosives, which conducted the Fast and Furious operation, hadn’t “knowingly allowed” the tactics in the law enforcement operation to be employed.

The Justice Department says it has provided more than 7,600 pages of documents in the case.

Documents responsive to the House panel’s subpoena relate to “sensitive law- enforcement activities, including ongoing criminal investigations and prosecutions,” Deputy Attorney General James Cole said in a June 20 letter to Issa.

The Justice Department documents would “show who brought about the dishonest statement to Congress and who covered it up for 10 months,” Issa said. That will help the panel “backtrack to the individuals who ultimately believed in Fast and Furious and facilitated Fast and Furious,” he said.

‘Most Reckless’

Representative Elijah Cummings of Maryland, the top Democrat on the oversight panel, called the probe “one of the most reckless and politically motivated congressional investigations in decades.”

Cummings argued that the investigation is aimed not at getting to the truth about Fast and Furious because Issa has refused to allow questioning of the head of the Bureau of Alcohol, Tobacco, Firearms and Explosives, which ran the operation.

“No member has been able to pose a single question to the head of ATF,” Cummings said.

Guns in Fast and Furious ended up “lost” and will turn up at crime scenes on both sides of the U.S.-Mexico border for years, Holder told lawmakers last year.

Two of about 2,000 guns that ATF allowed to be carried away were found at the scene of the December 2010 murder of U.S. Border Patrol agent Brian Terry in Arizona, according to a congressional report.

Tactics Banned

Holder has said he didn’t learn of the tactics in the operation until after it was the subject of news reports. Since then, he has banned the use of similar law enforcement methods and asked the department’s inspector general to investigate the operation.

“What the Republicans are doing with the motion today is contemptible,” Pelosi said before the vote. “This is something that makes a witch hunt look like a day at the beach” because it’s “based on a false premise” there was a cover-up by the Justice Department.

Pelosi accused Republicans of trying “to tie the hands” of Holder to “undermine” his effectiveness because of political and policy differences.

No Cabinet member has ever been held in contempt by either chamber of Congress, said Senate Historian Donald Ritchie. The only head of an executive agency held in contempt was Anne Gorsuch Burford, who served as administrator of the Environmental Protection Agency under President Ronald Reagan, Ritchie said. The House cited her for contempt in 1982.

Janet Reno

Holder became the first attorney general held in contempt by a congressional committee since Janet Reno in 1998. House Republican leaders opted against a floor vote on contempt for Reno, who served under President Bill Clinton, another Democrat.

The bloc of 17 Democrats who voted in favor of the contempt citation included lawmakers who were in tight re-election contests, including John Barrow of Georgia, Kathy Hochul of New York, Jim Matheson of Utah, Leonard Boswell of Iowa, and Mike McIntyre of North Carolina. Indiana Representative Joe Donnelly is running for Senate. A total of 21 Democrats voted for civil enforcement of the subpoena.

The National Rifle Association told House members in a June 20 letter it would consider the contempt vote in evaluations of candidates for office. The group said the Obama administration tried to use Fast and Furious “to advance its gun-control agenda.”

Representative Tim Walz, a Minnesota Democrat, said the NRA wasn’t a factor in his decision to vote for contempt.

“The balance of power requires Congress to provide oversight and without proper information I can’t do it,” Walz said.

To contact the reporters on this story: Seth Stern in Washington at sstern14@bloomberg.net; James Rowley in Washington at jarowley@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net


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