A House committee voted to hold Attorney General Eric Holder in contempt Wednesday for not releasing documents related to Operation Fast and Furious, a botched gun-tracking operation in which federal agents permitted Mexican drug smugglers to buy thousands of firearms that were eventually used in crimes.
Earlier, President Obama had invoked executive privilege to deny the committee the papers it sought. Obama’s assertion of executive privilege—the right of the president to withhold information from Congress or the courts—was the first of his presidency and an escalation of a protracted power struggle between his administration and congressional Republicans.
As a senator in 2007, Obama condemned the use of executive privilege by President George W. Bush, saying “there’s been a tendency on the part of this administration to try to hide behind executive privilege every time there’s something a little shaky that’s taking place.”
The Mitt Romney campaign quickly labeled Obama a hypocrite.
“President Obama’s pledge to run the most open and transparent administration in history has turned out to be just another broken promise,” campaign spokeswoman Andrea Saul said in a statement.
Bush asserted his executive privilege six times while in office. President Bill Clinton used his privilege 14 times.
The House Committee on Oversight and Government Reform subpoenaed the documents last October as part of its investigation of Fast and Furious, a program run by the Bureau of Alcohol, Tobacco and Firearms, and Holder has refused to provide them. In a letter to the committee’s Republican chairman, California Representative Darrell Issa, Deputy Attorney General James Cole wrote that “the compelled production to Congress of these internal executive branch documents ... would have significant, damaging consequences.”
Unmoved, the committee voted, 23-17, Wednesday afternoon to approve a contempt citation against Holder, with the vote falling along party lines. The move makes possible a wide range of scenarios: It could prove to be purely symbolic or could, with a full House vote to hold Holder in contempt of Congress, lead to Holder’s prosecution by the US attorney in Washington—a tricky prospect because US attorneys are Holder subordinates.
Contempt of Congress is a misdemeanor punishable by a $1,000 fine and 12 months in prison. No attorney general has ever been held in contempt of Congress.
The committee is seeking documents produced after Feb. 4, 2011, when the Justice Department sent a letter to the committee denying the use of “gunwalking” tactics in Fast and Furious. The Justice Department later retracted the letter, after whistleblowers said federal agents did use such tactics between 2009 and 2011, when they neglected to stop the purchase of about 2,000 guns by members of a Mexican drug cartel and allowed the smugglers to “walk” the guns over the border.
Federal agents hoped to trace the weapons back to the cartel. But the agents lost track of most of the guns, which have since been used in multiple crimes, including the December 2010 shooting death of US Customs and Border Protection agent Brian Terry.
The failed operation sparked a congressional investigation that centers on questions about who knew of and authorized the risky gunwalking, and who tried to cover it up.
Both Holder and Obama have denied involvement.
But Republican Senator Charles Grassley of Iowa, who initiated the investigation into Fast and Furious, said Obama’s invocation of executive privilege casts serious doubt over his administration’s claim that it knew nothing about the gunwalking or its cover-up.
“How can the president assert executive privilege if there was no White House involvement?” Grassley said in a statement. “How can the president exert executive privilege over documents he’s supposedly never seen? Is something very big being hidden to go to this extreme?”
Representative Elijah Cummings of Maryland, the ranking Democrat on the oversight committee, said he believes Holder has acted in good faith.
“People talk about, ‘He should know.’ Sometimes you don’t even know what people are doing in your own office of 21 people,” Cummings said. “This guy’s got people all over the country, in Mexico, in ATF.”
Cole’s letter to Issa repeated the Justice Department’s position that “leadership did not intend to mislead Congress” when it stated falsely that no gunwalking had occurred. It also noted that the Justice Department has issued a ban on the “flawed tactics” used in the operation.
Issa and fellow Republicans insist the probe is about accountability and transparency; during deliberations before the contempt vote Wednesday, they talked about justice and closure for Terry’s family.
Some Democrats on the committee suggested Issa’s dogged pursuit of the documents is aimed at embarrassing Holder and the Obama administration in an election year.
Obama used his executive privilege at the request of Holder, who tried unsuccessfully to reach a compromise with Issa and committee leaders on Tuesday. The Justice Department offered to provide the committee with “an understanding of the documents that [it] could not produce,” according to Cole’s letter, but the committee did not accept that.
Cole said in the letter to Issa that the Justice Department “has substantially complied with the outstanding subpoena,” noting it has already furnished the committee with more than 7,600 pages of documents and made its top officials, including Holder, available for several public hearings.
“The documents responsive to the remaining subpoena items pertain to sensitive law enforcement activities, including ongoing criminal investigations and prosecutions,” Cole explained.Callum Borchers can be reached at email@example.com. Follow him on Twitter @callumborchers.