House votes to cite Holder for contempt

California Republican Darrell Issa (right) chairs the House Oversight and Government Reform Committee. Rep. Elijah Cummings of Maryland is its ranking Democrat.
California Republican Darrell Issa (right) chairs the House Oversight and Government Reform Committee. Rep. Elijah Cummings of Maryland is its ranking Democrat. (J. SCOTT APPLEWHITE / AP)

President Obama invoked executive privilege to withhold requested documents.

Posted: June 22, 2012

WASHINGTON - Setting up a potential constitutional confrontation, a Republican-controlled House panel voted Wednesday to cite Attorney General Eric Holder for contempt of Congress hours after President Obama invoked executive privilege - for the first time - to withhold documents the committee demanded.

The 23-17 party-line vote followed hours of caustic debate. The controversy goes next to the full House, where Republican Speaker John A. Boehner of Ohio said there would be a vote next week unless there was a resolution in the meantime.

Committee Chairman Darrell Issa of California said that "more than eight months after a subpoena" for the documents - which concern how the Justice Department learned there were problems with an Arizona probe of gun-running into Mexico - Obama's "untimely assertion" of executive privilege was no reason to delay the contempt vote.

Rep. Elijah Cummings of Maryland, the committee's ranking Democrat, said the move was merely political. He called the vote "an extreme, virtually unprecedented action based on election-year politics rather than fact."

The last Cabinet member to be cited by a congressional committee for contempt was Attorney General Janet Reno in President Bill Clinton's administration. That was never taken to a follow-up vote in the full House.

Technically, if the full House approves the Holder contempt citation, there could be a federal criminal case against him, but history strongly suggests the matter won't get that far.

Whether Congress could force the Justice Department to turn over the documents is a basic question. In the Watergate case, the Supreme Court ordered President Richard Nixon to turn over taped conversations to a criminal prosecutor. But in that case, the justices also found a constitutional basis for claims of executive privilege, leaving the door open for presidents to cite it in clashes with Congress.

In the Obama administration's claim of executive privilege, Deputy Attorney General James Cole said in a letter to Issa, "We regret that we have arrived at this point, after the many steps we have taken to address the committee's concerns and to accommodate the committee's legitimate oversight interests."

As the day went on, comments grew more heated. A Boehner spokesman suggested administration officials had lied earlier or were now "bending the law." Cummings said Issa "had no interest" in resolving the issue and was trying to pick a fight.

The White House reacted sharply to the committee action. "Instead of creating jobs or strengthening the middle-class, congressional Republicans are spending their time on a politically motivated, taxpayer-funded election-year fishing expedition," spokesman Dan Pfeiffer said.

Cummings said Issa could have settled the matter with Holder reasonably but had instead resorted to "partisan and inflammatory personal attacks."

Holder and Issa failed to reach an agreement Tuesday in a meeting at the Capitol.

During the committee's 18-month investigation, the department has turned over 7,600 documents about the conduct of the Arizona operation, called Fast and Furious. However, because Justice initially falsely told the committee the operation did not use a risky investigative technique known as gun-walking, the panel has turned its attention from the details of the operation and now seeks documents that would show how department headquarters responded to the committee's investigation.

In the operation, agents of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives in Arizona abandoned the agency's usual practice of intercepting all weapons they believed to have been illicitly bought. Instead, the goal of gun-walking was to track such weapons to high-level arms traffickers, who had long eluded prosecution, and to dismantle their networks.

Gun-walking has long been barred by Justice Department policy, but federal agents in Arizona experimented with it in at least two investigations during the George W. Bush administration. At the time, the department was under widespread criticism that the old policy of arresting every suspected low-level "straw purchaser" was still allowing tens of thousands of guns to reach Mexico. A straw purchaser is an illicit buyer of guns for others.

The agents in Arizona lost track of several hundred weapons in Operation Fast and Furious. Two of the guns that "walked" in the operation were found at the scene of the slaying of U.S. border agent Brian Terry.

Historically, at some point Congress and the president negotiate agreements to settle these disputes, because both sides want to avoid a court battle that could narrow either the reach of executive privilege or Congress' subpoena power.

Ordinarily, deliberative documents like those Issa seeks are off-limits to Congress. In Operation Fast and Furious, the Justice Department's initial incorrect denials are seen as providing justification for the additional demands.

On Wednesday, the slain border agent's parents, Josephine and Kent Terry, said the president's assertion of executive privilege and Holder's refusal to fully disclose documents associated with Operation Fast and Furious "compound this tragedy."

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