by Dave Kopel
Is Attorney General Eric Holder in criminal contempt of Congress because of his role in the “Fast and Furious” cover-up? As this magazine goes to press, the U.S. House Oversight Committee has just voted 23-17 to recommend Holder be held in contempt. A vote by the full House of Representatives is scheduled for late June, unless Holder releases the documents he has been concealing.
Whatever the House does, Holder has already proven his contempt for Congress. And now, President Barack Obama has himself taken a lead role in the cover-up by claiming that “executive privilege” allows him to withhold documents from congressional investigators.
The full House could vote for either criminal contempt or civil contempt. A criminal contempt resolution would be referred to the U.S. attorney for the District of Columbia, who would be required to bring the case before a grand jury. The maximum punishment for criminal contempt of Congress is one year in federal prison and a $1,000 fine. Since the attorney who would have to prosecute the criminal contempt case works for Holder, it is unlikely that a criminal conviction would result.
Alternatively, and more likely, the House could vote for civil contempt. Then, the House could bring a civil case in court, asking the judge to order Holder to turn over the documents. If Holder refused a court order, the judge could impose sanctions on Holder, such as fines.
A contempt of Congress resolution is very rare, and it is a powerful sign of how far a person may have stepped outside of the law. That is one reason why NRA-ILA Executive Director Chris W. Cox sent Congress a letter calling the contempt vote “an issue of the utmost seriousness” and explaining NRA would take the vote into account in its candidate evaluations.
The Obama/Holder administration’s cover-up of “Fast and Furious” is apparently designed to keep the scandal out of the public mind until the November elections are over. Much of the pro-Obama national media, such NBC/MSNBC, have ignored “Fast and Furious,” or have “covered” the story with a pro-Obama spin.
Because of the “Fast and Furious” operation, U.S. Border Patrol Agent Brian Terry was murdered on Dec. 14, 2010. And according to the Mexican attorney general, “Fast and Furious” guns have been used in at least 200 murders in Mexico. Among the victims was a Mexican state attorney general’s brother, who was tortured to death.
If Holder is allowed to get away with this, what crimes and cover-ups might take place during a second Obama term? If, during the first term, putting guns in the hands of murderers was accepted as a useful means for promoting gun control, what could a second term bring?
Here are some of the reasons why many believe it would be appropriate for Holder to be declared in contempt of Congress:
On Oct. 12, 2011, the House Oversight Committee sent a subpoena—a legally compulsory demand for documents—to Holder. The subpoena specified 22 particular types of documents that Holder was required to produce for the committee. The October subpoena came after six months of Holder’s obstreperous defiance of previous subpoenas. The Oversight Committee knew that Holder was withholding documents because whistleblowers had provided the committee with documents that Holder had not delivered.
Since October, Holder has not produced anything in 13 of the 22 subpoena categories. Since the House investigation began in early 2011, the Department of Justice has produced about 7,600 pages of documents for congressional investigators. But the department’s own files on “Fast and Furious” include over 70,000 more pages of documents that have not been produced.
Those pages withheld from Congress were given to the DOJ’s own inspector general (IG). The DOJ’’s internal self-investigation of “Fast and Furious” has been going on since February 2011. When asked why the DOJ’s self-investigation is taking so long, DOJ explained that the investigators were trying to reach “consensus.” It seems very possible that no “consensus” will form until after the November elections.
For some of the subpoena categories, Holder’s DOJ has asserted that the documents cannot be provided because they relate to an ongoing criminal investigation. Yet legal experts say this fact in itself is not sufficient to deny Congress all access. Among the possible accommodations are that some documents could be made available to congressional staff to read but not to copy.
Notably, the DOJ’s criminal investigations seem to be proceeding so slowly as to delay any disclosures until after the election.
On the morning of the contempt vote, President Obama personally invoked “executive privilege” to justify the withholding of the documents. Obama was apparently relying on a subtype of the privilege, called “deliberative process privilege,” which protects the confidentiality of some discussions among executive branch personnel.
Unlike some legal privileges (such as the priest-penitent privilege), the deliberative process privilege is not absolute. In particular, as the U.S. Supreme Court unanimously ruled in the case of United States v. Nixon (1974), the privilege is not to be used to cover up evidence of wrongdoing. Given the Obama/Holder administration’s obduracy, the issue will probably have to be resolved by a court.
Let’s take a look at the 13 categories of documents for which the Holder DOJ has refused to provide anything to Congress.
1. Communications between the DOJ and the White House about “Fast and Furious.” Among the communications sought are those involving Associate Communications Director Eric Schultz, who screamed at CBS News reporter Sharyl Attkisson in October 2011 because of her continuing investigation of “Fast and Furious.” These documents might reveal a lot about the White House’s role in the cover-up.
Among the mainstream media, CBS’s Attkisson has been the leader in reporting on “Fast and Furious.” Like the congressional investigators, she, too, has been stonewalled by the Obama administration.
Pursuant to the Freedom of Information Act, she has requested the administration provide copies of “Fast and Furious”-related communications involving Holder, Assistant Attorney General Lanny Breuer and other top DOJ officials.
All of the CBS News requests were denied in whole or in part. Some of the documents that were “produced” were mostly blank pages. And for most of the requests, the administration took more than a year to respond.
Notably, Breuer and his staff had the legal responsibility to approve the wiretap applications that were part of “Fast and Furious.” The Obama/Holder administration spent 2011 claiming that the applications did not describe the “gun-walking” tactics that were the core of “Fast and Furious.” But in May 2012, whistleblowers provided the House Oversight Committee with copies of the wiretap applications, which did describe the gun-walking tactics. Holder then claimed that neither Breuer nor his staff even read the wiretap applications before approving them, although federal law requires them to do so.
CBS also sent a FOIA request to the FBI about the murder of Border Patrol Agent Terry. That request was entirely denied on the basis that there is an ongoing investigation of his murder. Terry was murdered in December 2010. Taking a year and a half (with no end in sight) to investigate the murder of a federal agent is not exactly fast-paced. The existence of an “ongoing investigation” is a common pretext to keep Congress and the public in the dark.
CBS points out that the FBI has already provided some Terry records to the media without jeopardizing the investigation. Further, the FBI has failed to provide a log of the withheld documents.
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