Although the Department of Justice will not seek criminal prosecution
WASHINGTON – The White House and the Justice Department made clear what had been expected all along: Attorney General Eric Holder will not face criminal prosecution under the contempt of Congress citation passed by the U.S. House.
Legal experts noted in the run-up to House vote that President Barack Obama’s assertion of executive privilege in the case would prevent a criminal prosecution under a practice dating to the Reagan administration.
The House also cited Holder for civil contempt to give it the option of filing a lawsuit compelling Holder to turn over documents sought by Oversight Committee investigators linked to the failed Operation Fast and Furious weapons crackdown. Such a case was expected to take years to complete. A letter from the Justice Department to House Oversight Committee Chairman Darrell Issa, who led the investigation that brought the contempt charge against Holder, explained that “across administrations of both political parties, the longstanding position of the Department of Justice has been and remains that we will not prosecute” in such a circumstance.
“The department will not bring the congressional contempt citation before a grand jury or take any other action to prosecute the Attorney General,” concluded the letter from Deputy Attorney General James Cole.
White House spokesman Jay Carney said, “it is an established principle, dating back to the administration of President Ronald Reagan, that the Justice Department does not pursue prosecution in a contempt case when the president has asserted executive privilege.” A spokesman for Issa’s committee and another top congressional Republican, veteran Sen. Charles Grassley of Iowa, complained that the refusal to prosecute showed a lack of independence by the U.S. attorney who would handle the case.
“It is regrettable that the political leadership of the Justice Department is trying to intervene in an effort to prevent the U.S. attorney for the District of Columbia from making an independent decision about whether to prosecute this case,” said Frederick Hill, the panel’s director of communications. Obama asserted executive privilege on some documents sought by Issa’s committee in its investigation of Operation Fast and Furious.
The executive privilege assertion prevented the documents from being turned over on the grounds that they include internal deliberations traditionally protected from outside eyes. The Bureau of Alcohol, Tobacco, Firearms and Explosives launched Operation Fast and Furious out of Arizona to track weapons purchases by Mexican drug cartels. It followed similar programs started in the Bush administration.
However, Fast and Furious lost track of more than 1,000 firearms it was tracking, and two of the lost weapons turned up at the scene of the 2010 killing of U.S. Border Patrol agent Brian Terry. Issa, R-California, and Republicans contend that Holder and the Justice Department are concealing details of how Fast and Furious was approved and managed. Democrats argue that Issa and his GOP colleagues are using the issue to try to score political points by discrediting Holder and, by extension, the president in an election year.
The showdown between Issa and Holder over the program dates to subpoenas issued last year by the House committee seeking a wide range of documents and other materials. Eventually, the committee reduced its demand to focus on documents involving decision-making after the Fast and Furious program was shut down. In particular, the committee wanted internal documents relating to the period after February 2011, when the Justice Department sent Congress an erroneous letter — later withdrawn — that said top officials knew nothing about Fast and Furious until early that year.
Issa conceded that investigators lack any evidence that Holder knew of the failed weapons-tracking tactics of Fast and Furious. The contempt citation was for Holder’s failure to comply with subpoenas seeking specific documents. “It’s not for what the attorney general knew about Fast and Furious,” Issa said.
“It’s about the attorney general’s refusal to provide the documents.” Carney said Issa’s comment showed the contempt citation was about politics. “Remarkably, the chairman of the committee involved here has asserted that he has no evidence that the attorney general knew of operation Fast and Furious or did anything but take the right action when he learned of it. No evidence,” Carney concluded. “So if you have no evidence, as he’s stated now about the White House and the attorney general, what else could this be than politics?”
In the Congress vote on criminal contempt, House Republicans were joined by 17 Democrats in citing Holder, while dozens of Democrats walked out in protest.