In 2007, then-Senator Obama attacked the Bush Administration for trying “To hide behind Executive Privilege every time there’s something a little shaky that’s taking place.”
What is “Contempt”?
The contempt process is the means by which Congress responds to certain acts that, in its view, obstruct its legislative function. According to CRS, “contempt may be used either to coerce compliance, punish the contemnor, and/or to remove the obstruction. Although arguably any action that directly obstructs the effort of Congress to exercise its constitutional powers may constitute a contempt, in recent times the contempt power has most often been employed in response to non-compliance with a duly issued congressional subpoena—whether in the form of a refusal to appear before a committee for purposes of providing testimony, or a refusal to produce requested documents.”
Why is Congress Considering Holding Attorney General Holder in Contempt?
The House is seeking to hold Attorney General Eric Holder in contempt of Congress for blocking its efforts to get the facts about Operation Fast and Furious—a flawed Justice Department sting operation that allowed 2,000 weapons to fall into the hands of Mexican drug cartels, and is linked to the death of U.S. Border Patrol Agent Brian Terry. On June 20, 2012, the House Committee on Oversight and Government Reform reported a contempt resolution for Attorney General Holder. Specifically, the resolution asks the Department of Justice (DOJ) to hold Attorney General Holder in contempt for his “failure to comply with a Congressional subpoena” in the Fast and Furious investigation. The House Committee on Oversight and Government reform approved the contempt citation yesterday by a vote of 23-17.
A Brief History of Contempt in Congress
Contempt proceedings in Congress date back over 215 years. Although no Attorney General has ever been held in contempt of Congress, other senior executive branch officials have. Most recently, in 2007 former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten were held in contempt of Congress for their failures to comply with subpoenas issued by the House Judiciary Committee. On July 25, 2007, the Committee voted, 22-17, to hold Miers and Bolten in contempt of Congress, and on February 14, 2008, the full House voted 223-32 to cite them for contempt. (House Republicans walked off the floor in protest of this vote).
For a more detailed history, please see this memo released to House Republican Members from Chairman Issa.
FAST AND FURIOUS STATE OF PLAY
In a February 4, 2011 letter to Senator Charles Grassley, the Department of Justice stated that “ATF makes every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico.” Thanks to the actions of courageous whistleblowers, Congress knew immediately that this letter contained false statements. This letter was formally withdrawn by the Department on December 2, 2011 after it acknowledged its inaccuracies. This letter also constitutes the beginning of the Department’s obstruction of the congressional investigation into Fast and Furious.
For the past sixteen months, the Department of Justice has failed to cooperate meaningfully with the congressional investigation led by Chairman Issa and Senator Grassley. In October 2011, Chairman Issa issued a subpoena to the Attorney General requiring the Department to provide documents in 22 categories pertaining to Fast and Furious. After eight months, the Department has still failed to produce documents in half the categories. Many documents in the categories for which the Department has produced documents, contain little, if any, useful information and—in some cases only a few pages, and in many cases heavily redacted pages. The category for which the Department has produced the most documents involves documents relating to earlier ATF operations in Phoenix.
On Friday, May 18, 2012, the Speaker, Majority Leader, Majority Whip and Chairman of the Oversight and Government Reform Committee sent a letter to the Attorney General dramatically narrowing the scope of the dispute for which the Department needed to produce responsive documents to avoid contempt proceedings. The letter asserts that “two key questions remain unanswered: first, who on your leadership team was informed of the reckless tactics used in Fast & Furious prior to Agent (Brian) Terry’s murder; and, second, did your leadership team mislead or misinform Congress in response to a Congressional subpoena?”
On June 6, 2012, Chairman Issa presented new documents to Attorney General Eric Holder showing that senior Justice Department Officials in Washington were given specific information about reckless tactics in Operation Fast and Furious. These documents, six wiretap applications authorized by senior officials in the Justice Department, contradict several prior statements by the Attorney General that senior Department officials were not involved in authorizing Fast and Furious. In another letter, Chairman Issa rebuked the Attorney General for his continuing efforts to mislead Congress about the level of knowledge of the reckless tactics by these senior officials.
These wiretap applications, sealed by a federal judge, contain rich detail about the reckless and controversial tactic known as “gunwalking” that was used in Operation Fast and Furious. The Attorney General has consistently denied that information about such tactics was included in the wiretap applications.
The Oversight and Government Reform Committee subpoenaed documents containing information that led to the creation of the wiretaps, but the Justice Department refused to produce them. The wiretap applications themselves, provided to the Committee by whistleblowers, help answer some of the questions House leadership warned Attorney General Holder he must fully address to avoid contempt proceedings. As the wiretap applications have been sealed, the Committee cannot publicly release them, but copies have been sent to the Committee Minority and are available for review by Members of the House.
With only one area in dispute still outstanding, Attorney General Eric Holder met with Chairman Issa to negotiate a resolution. Chairman Issa had offered to delay contempt proceedings if the Justice Department produced documents pursuant to this category. The Department acknowledged it had these documents available, but in the June 19, 2012 meeting with Chairman Issa, the Attorney General failed to produce any of them. Instead, the Attorney General offered to brief Chairman Issa in the future on a small subset of the documents if Chairman Issa agreed to drop his investigation. The Attorney General would not show Chairman Issa any of the documents or even describe them. No Congressional Committee could accept such an offer – particularly after the Department had, for ten months, denied wrongdoing in Fast and Furious through its February 4, 2011, letter that was later retracted.
Yesterday, President Obama asserted Executive Privilege over these documents. Even though the documents were subpoenaed eight months ago, the Administration waited until minutes before the Oversight and Government Reform Committee began contempt proceedings to assert the privilege.
The President has long denied anyone at the White House knew about, or was involved in, the flawed gun-walking operation and subsequent efforts to retaliate against whistleblowers. This raises new questions about the validity and motive of this surprising assertion of Executive Privilege.
Since the contempt resolution was reported out of Committee, it will next be considered on the House floor. If a majority on the House floor approves a resolution of contempt, it would be referred to the U.S. Attorney for the District of Columbia for enforcement of the subpoena.
Chairman Issa has told the Department of Justice that the opportunity continues to exist to delay proceedings, if it produces the documents that the Attorney General told Congress that it could produce.
For questions contact Sarah Makin at 6-2302.
 Congressional Research Service, http://www.crs.gov/pages/Reports.aspx?PRODCODE=RL34097&Source=search.