What happens next after the congressional contempt vote against the attorney general.
Today the House of Representatives will decide whether or not to find Attorney General Eric holder in contempt of Congress for his refusal to turn over subpoenaed documents in the gunrunning scandal known as Fast and Furious. A pair of eleventh-hour meetings between White House officials and Republicans at the Justice Department (DOJ) and the White House attempting to avert the showdown were not fruitful. The DOJ showed GOP staffers 14 documents a senior administration official characterized as a "representative sample" of what Republican had been seeking. At one of the meetings, DOJ officials reportedly offered to provide all the documents requested if Republicans would drop contempt proceedings. That offer was rejected.
"The documents that were shown today did not shed any meaningful new light on the questions and interactions that took place at the Justice Department," a Republican official told the Associated Press. White House spokesman Eric Schultz contended otherwise. "This was a good faith effort to resolve this while still protecting the institutional prerogatives of the Executive Branch, often championed by these same Republicans criticizing us right now," he said. "Unfortunately Republicans have opted for political theater rather than conduct legitimate Congressional oversight." White House spokesman Jay Carney echoed that sentiment, contending the public would view the vote as "political theater" and "gamesmanship," and that the administration's offer would have provided "unprecedented access" to the relevant documents.
Yet even as the White House and its media surrogates attempted to paint today's vote as a completely partisan one, Wednesday morning revealed a different picture. At least four Democrats said they planned to break ranks with their party and support a contempt citation against Mr. Holder. The four are more conservative-leaning members of their party who are facing tight races in their respective districts. Yet they may only be the beginning of a far larger defection. Sources told Fox News that approximately 20 Democrats are likely to break ranks with president Obama, due in large part to his claim of executive privilege over the withheld documents.
Rep. John Barrow (D-GA) explained his reasoning. "While Republicans and Democrats argue over the scope of the people's right to know what happened, the attorney general has decided to withhold relevant documents," he said. "The only way to get to the bottom of what happened is for the Department of Justice to turn over the remaining documents, so that we can work together to ensure this tragedy never happens again." Jim Matheson (D-UT) was equally forthright. "Sadly, it seems that it will take holding the attorney general in contempt to communicate that evasiveness is unacceptable. It is a vote I will support." Mr. Matheson further contended that Congress, the public and parents of slain Border Agent Brian Terry "deserve answers." Reps. Nick Rahall (D-WVA) and Collin Peterson (D-MN) joined Mr. Barrow and Mr. Matheson in announcing their intention to vote for contempt.
Two factors may have influenced defecting Democrats. On Tuesday, Darrell Issa (D-CA) chairman of the House Oversight and Government Reform Committee leading the investigation into Fast and Furious, upped the political ante even further, sending a seven-page letter to president Obama. “Either you or your most senior advisers were involved in managing Operation Fast and Furious and the fallout from it, including the false Feb. 4, 2011 letter provided by the attorney general to the committee,” Issa wrote. “Or, you are asserting a presidential power that you know to be unjustified solely for the purpose of further obstructing a congressional investigation.”
White House spokesman Eric Schultz's defense of Mr. Obama's actions sounded less than convincing. “The courts have routinely considered deliberative process privilege claims and affirmed the right of the executive branch to invoke the privilege even when White House documents are not involved.” That is true, but Fast and Furious was an operation responsible for the death of Agent Terry, hundreds of Mexican civilians, and quite likely Immigration and Customs Enforcement (ICE) agent Jaime Zapata as well. Perhaps the stonewalling of critical evidence in an operation that produced hundreds of murders trumps partisan politics for some Democrats.
It is also likely some Democrats felt pressured by the National Rifle Association (NRA), who warned House lawmakers they would score today's vote. Last week they sent a letter to every House member condemning Holder's "open defiance" of the GOP probe. Democrats were taken aback, with Rep. Xavier Becerra (D-CA) contending the organization is "playing politics," and arguing that the contempt vote "has nothing to do with the specific use or ownership of guns." Becerra also claimed the NRA's involvement "shows how far Republicans allowed the issue of government oversight to descend into an issue of Republican overreach."
How the NRA's involvement translates to Republican overreach is anyone's guess, when one considers the gun rights organization endorsed conservative Democratic candidates in 53 House races during the 2010 election. But it is also irrelevant. Barring the incredibly unlikely defection of Republicans to Mr. Holder's side in today's vote, their numerical control of the House, coupled with even the most modest Democrat support, makes the contempt of Congress citation a virtual done deal.
What comes next? A number of options are available. An 1857 statute allows the House to refer the matter to the Justice Department for prosecution in federal court. Yet the DOJ would almost certainly exercise "prosecutorial discretion," and refuse to charge Mr. Holder. The House could file suit in federal court seeking a declaratory judgment that Holder is in contempt of Congress, and an injunction ordering him to comply with the congressional subpoenas. That too is unlikely. Even if the House could get a court to grant such a judgment, a legal battle could take years. The House could send its sergeant-at-arms to arrest Mr. Holder and hold him until his contempt is purged. Yet this could result in a standoff between the House sergeant-at-arms and the executive-branch police tasked with protecting Holder, or one between judicial marshals and executive-branch police. The courts could also be involved here as well, inquiring into the House’s jurisdiction to arrest.
The House could impeach Mr. Holder, but the likelihood of a Democrat-controlled Senate convicting him is next to nil. They might even use their constitutionally-mandated power of the purse to severely cut the budgets of the ATF, and/or the DOJ, or refuse to pay Holder’s salary until he purges his contempt citation. They could also censure him, or continue to hold hearings in an effort to embarrass the Attorney General. A second House vote could also be held to sue Mr. Holder in the civil courts, aimed at obtaining a subpoena that would force the administration to release the documents in question.
With so many options, it is likely the court of public opinion will play a decisive roll in where all of this eventually leads. A Rasmussen Reports poll released last Friday showed that 40 percent of likely voters want Holder to resign, 27 percent think he should stay, and 33 percent are undecided. Yet that poll must be measured against the reality that only 50 percent of likely voters have either “very closely” or “somewhat closely” followed the Fast and Furious scandal as it has unfolded.
Much of that is undoubtedly due to a media blackout that has been as calculatingly indifferent as possible regarding the scandal. It is virtually inconceivable that the same indifference would apply to a Republican administration scandal involving high-level government officials, the murder of one (possibly two) government agents as well as hundreds of Mexican civilians, and a presidential executive order attempting to keep information about it all under wraps.
Whether the media can continue to maintain such indifference remains to be seen. Today is the same day the Supreme Court reveals its ruling on the healthcare bill. Mr. Holder should be eternally grateful for such a monumental diversion. Yet a contempt of Congress citation can hardly be ignored indefinitely. As of now, no elected Democrats have joined 129 House and five Senate Republicans in demanding Holder’s resignation. Yet until yesterday, no House Democrats had expressed support for finding Mr. Holder in contempt of Congress either. Things change for both politicians and the media--especially in an election year.
Freedom Center pamphlets now available on Kindle: Click here.