The House Republican leadership has given the go-ahead to proceed with a contempt citation against Attorney General Holder over his refusal to comply with a subpoena for information about DOJ’s Fast and Furious program. A draft contempt resolution reportedly is being prepared.
The subpoena at issue calls for the Justice Department to produce approximately 80,000 pages of material regarding Fast and Furious to which the DOJ Inspector General had access. To date, the Justice Department has produced only about 7,000 of these pages.
The effort to obtain the documents has been led by Rep. Jason Chaffetz, a member of both House committees with jurisdiction for the investigation — the Committee on Oversight and Government Reform and the Judiciary Committee. Chaffetz says that Holder is “is leading us down a path where we have no other choice” but to initiate contempt proceedings. Rep. Trey Gowdy, Chaffetz’s colleague on the Oversight Committee, has stated that if Holder didn’t fully respond to the subpoena by Memorial Day, May 28th, the contempt of Congress proceedings will begin and the Justice Department could see a cut in funding.
Congressional contempt proceedings against the Executive are a rarity, but House Democrats did find Joshua Bolton and Harriet Miers in contempt during their investigation of the firing of U.S. Attorneys during George W. Bush’s second term. The House then sought a declaratory judgment and injunction ordering the two to comply with subpoenas. A federal district court ruled in favor of the House, and a compromise was reached.
There’s always political risk when congressional Republicans take drastic action against a Democratic administration, for example by the kind of retaliatory funding cut Rep. Gowdy contemplates. Here, however, the scandal – Fast and Furious – is so egregious and potentially explosive that the House Republicans seem to have the upper hand. As Chaffetz says:
You have a dead U.S. Border Patrol Agent, you have thousands of weapons that were knowingly given out by the Department of Justice to the bad guys. We gave them to the criminals. We have nearly 300 dead in Mexico and a host of questions that that the Department of Justice has never, ever answered.
The Justice Department is using a tactic familiar to all attorneys who have faced obstruction during fact discovery – it is talking about what the information it has been willing to provide. For example, a Justice Department spokesperson cites Holder’s numerous appearances to testify before Congress.
But cooperation on one front doesn’t excuse failure to cooperate on another. To perform its investigative task properly, Congress needs access to the same documents DOJ had available for its internal investigation. If DOJ won’t provide them, then contempt seems like an appropriate last resort.