WASHINGTON >> A House committee has voted to hold Attorney General Eric Holder in contempt of Congress for failing to turn over Justice Department documents. The straight party-line vote was 23-17.
The vote followed a decision by President Barack Obama earlier in the day to assert executive privilege for the first time in his administration in order to protect the confidentiality of the documents.
Comments rapidly grew more heated. A spokesman for House Speaker John Boehner suggested administration officials had lied earlier or were now "bending the law," while Democratic Rep. Elijah Cummings said the committee’s GOP chairman "had no interest" in resolving the issue and was trying to pick a fight.
In a letter to the committee chairman, Darrell Issa of California, a Justice Department official said the executive privilege applies to documents that explain how the department learned there were problems with an investigation in Arizona of gun-running into Mexico, called Operation Fast and Furious.
At the start of a hearing, Issa called the president’s action "an untimely" assertion of privilege. The committee was later to vote on whether to cite Holder for contempt of Congress for failing to turn over the documents. If the panel approved that, the contempt citation would then go to the full House. Technically, if the full House approved, there could be a federal case against Holder, but history strongly suggests the matter won’t get that far.
"The president has asserted executive privilege," Deputy Attorney General James Cole said in the 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."
House Speaker John Boehner, R-Ohio, raised another question after the president invoked the privilege.
"Until now, everyone believed that the decisions regarding ‘Fast and Furious’ were confined to the Department of Justice. The White House decision to invoke executive privilege implies that White House officials were either involved in the ‘Fast and Furious’ operation or the cover-up that followed," said Boehner’s press secretary Brendan Buck. "The administration has always insisted that wasn’t the case. Were they lying, or are they now bending the law to hide the truth?"
Rep. Cummings of Maryland, the committee’s ranking Democrat, had a different take. He said Issa could have settled the matter with Holder reasonably but has instead resorted to "partisan and inflammatory personal attacks."
The likelihood of a contempt vote rose after Holder and Issa failed to reach agreement Tuesday in a 20-minute meeting at the Capitol.
The White House reacted sharply. "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," White House Communications Director Dan Pfeiffer said today.
Arguing that the Justice Department had "spent the past 14 months accommodating congressional investigations," Pfeiffer said, "Yet, Republicans insist on moving forward with an effort that Republicans and objective legal experts have noted is purely political."
During the committee’s year-and-a-half-long investigation, the department has turned over 7,600 documents about the conduct of the Fast and Furious operation. However, because Justice initially told the committee falsely 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 is now seeking documents that would show how the department headquarters responded to the committee’s investigation.
In Fast and Furious, 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 be illicitly purchased. 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 before Fast and Furious. These experiments came as 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 many of the 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.
Holder and Issa met for 20 minutes Tuesday but failed to resolve the dispute.
Issa wanted the documents immediately. Holder told reporters he would not turn over documents on the gun-smuggling probe unless Issa agreed to another congressional briefing on the Justice Department material. Holder wanted an assurance from Issa that the transfer of the records would satisfy a subpoena from the House Oversight and Government Reform Committee, which Issa heads.
"If we receive no documents, we’ll go forward" with a contempt vote, Issa told reporters.
Now that the committee has voted to recommend that Holder be held in contempt of Congress, the recommendation would go next to the full House for a vote although House leaders are not required to call it up for a vote. They could instead use the threat of that to press for renewed negotiations.
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 is seeking 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.
Issa and the House Republican leadership have asked whether the department’s initial denial in a Feb. 4, 2011, letter to Sen. Charles Grassley, R-Iowa, was part of a broader effort to obstruct a congressional investigation.
The material "pretty clearly demonstrates that there was no intention to mislead, to deceive," Holder told reporters.
After executive privilege was asserted, the committee moved ahead with vote on the contempt citation.
Issa said that "more than eight months after a subpoena and clearly after the question of executive privilege could have and should have been asserted, this untimely assertion … falls short of any reason to delay today’s proceedings."
Rep. Dennis Kucinich, D-Ohio, said a vote should be postponed.
"The administration has the constitutional right to claim executive privilege and refuse to produce those documents," Kucinich said. "It would be a shame to produce a titanic contest between two branches of government."