Eric Holder faces House committee vote this week on contempt charges
The House Committee on Oversight and Government Reform will vote this week on whether to hold Attorney General Eric Holder in contempt of Congress. But, history shows that Holder could very well negotiate and relent in some way, and deliver the documents Congressional investigators want and need to be effective examiners of the executive branch.
“Attorney General Holder is not the first executive branch official to flagrantly flout a subpoena requiring him to produce documents and otherwise defy the plenary oversight powers granted to Congress by the Constitution,” said former Senate Judiciary Committee Counsel Jack Daly.
As it stands, however, unless the Oversight committee receives a “serious proposal” to release Department of Justice documents relating to Operation Fast and Furious, the Attorney General will be held in contempt, said committee chairman Rep. Darrell Issa (R-Calif.). In the controversial operation, the Bureau of Alcohol, Tobacco and Firearms allowed sale of guns and ammunition to people linked to Mexican drug cartels in hopes of identifying gun traffickers as well as finding out information about the cartels.
The documents are important, committee members say, because they believe they will reveal what and who in the Justice Department knew about the operation and how the guns were disappearing, and the program was failing to produce expected results. Issa told Human Events that Holder’s subordinates had given him “completely inaccurate information” and that the “subpoena is so important” because “we need to know who did it.” Issa spoke on June 14 with Human Events contributing writer John Seiler after an event in Orange County, Calif. Issa went on to say that “At some point, someone has to be held accountable for [Border Patrol Agent] Brian Terry and hundreds of others dying.” He expects the House vote to follow party lines.
The contempt of Congress vote comes nine months after the documents were subpoenaed by the committee, and after nine different hearings regarding the Fast and Furious investigation and Department of Justice “stonewalling,” according to members of Congress. Of the subpoenaed documents, the Justice Department has produced 7,600 pages of material for the committee, yet tens of thousands of pages still remain.
If Holder were to be held in contempt by the Oversight Committee, it would be the first time it has happened to an Attorney General since Janet Reno, who was held in contempt in 1998 by the Oversight Committee over withholding documents involved in the impeachment of President Bill Clinton.
Of the 15 cases of contempt of Congress since 1975, almost all the targets released the subpoenaed materials before the contempt of Congress vote was considered by the full chamber of the House of Representatives, which ended the formal proceedings. Janet Reno did so, releasing the documents during the impeachment proceedings and before a full House vote.
Since 1857, contempt of Congress has been a criminal offense against the United States and as such, carries with it legal ramifications, according to federal law.
House Republican leadership until recently has remained silent on the possibility of contempt of Congress charges, but that changed last week with Issa’s announcement. House Speaker John Boehner said in a statement that, “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.” If the resolution of contempt were passed, the House would have two options they’ve been known to use to enforce its mandate.
One method, much less frequently invoked, is known as “inherent contempt,” where, following a successful contempt of Congress vote by the full chamber, Daly states, “The House could direct the Sergeant-at-Arms to arrest and imprison Mr. Holder until he complies with the subpoena.” The last person found guilty under inherent contempt, in 1934, was imprisoned for 10 days. It is less used because the punishment may only last for the duration of the current Congressional session, making it largely ineffective.
The other and more often used process following a successful contempt of Congress vote, according to Daly, “the House could refer its resolution to Ronald C. Machen Jr., the United States Attorney for the District of Columbia,” who according to the law, “would have an affirmative statutory duty to prosecute Mr. Holder for ‘contempt of Congress.’” If convicted, Holder could face one to twelve months of jail time.
“The so-called ‘constitutional crisis’ scenario would happen if the President and/or Attorney General ordered the U.S. Attorney to refuse to fulfill his statutory duty. Although Mr. Machen was confirmed by the Senate to a term of years, he nonetheless serves at the pleasure of the Attorney General and is subject to at-will removal power,” Daly said.
No Attorney General in memory has been found in contempt of Congress before, in fact, only one, Augustus Hill Garland, has even been censured by Congress.
Even if Holder releases the documents he could still be censured by the Republican-dominated House Oversight committee for being generally recalcitrant and uncooperative since the hearings began. A censure is essentially a Congressional slap on the wrist that has no legal ramification.
At a Senate Judiciary hearing June 12, Attorney General Holder took a more conciliatory path, stating that, “We are prepared to make – I am prepared to make –compromises with regard to the documents that can be made available,” to avoid what he described as “an impending constitutional crisis.”