Let’s face it: If you are Attorney General Eric Holder and you are charged by the House with contempt of Congress, you’ve already got 80 percent or more of the American people on your side, judging from recent Congressional approval ratings.
That is not to make light of the House vote to find the AG in contempt, but rather to question the validity of the countercharge being thrown that this was all done by the Republican majority to score political points. Keep in mind that not only do the American people hold Congress in contempt, but they are repulsed by any nasty infighting between the branches that distracts attention from addressing more serious problems.
Perhaps Congress would be better off if it changed the term “contempt of Congress” to “defiance of the people’s elected representatives,” but I doubt it.
By the same token, the people aren’t all that enamored of the president’s assertion, at Holder’s behest, of a deliberative process privilege (as opposed to a presidential communications privilege) to protect the subpoenaed documents relating to the botched “Fast and Furious” gun-walking operation. One poll found only 29 percent of respondents approving the president’s action and 56 percent disapproving.
It’s not just our democratic impulse to resist granting special privileges to government officials. It’s also the connotation executive privilege has carried since President Richard Nixon invoked it three times during the Watergate scandal. Can you say, cover-up and stonewalling?
Despite the tragic death of a Border Patrol agent stemming from the Fast and Furious operation and public suspicions about presidential assertions of executive privilege, the complex interbranch dispute does not readily lend itself to public comprehension, let alone partisan exploitation.
Granted, some GOP Members wanted Speaker John Boehner (R-Ohio) to bring the contempt charge against Holder to a floor vote much sooner. But Boehner made it clear publicly that he was reluctant to act precipitously while there was still a chance for a settlement. Apparently, the continued resistance of the Department of Justice to fully comply with the subpoenas, right up to the last minute, left the House little recourse.
The criminal contempt power of Congress is a very blunt instrument because its only effective use is in its not being used. It is the threat of contempt that usually produces the subpoenaed documents or testimony. Failing that, the actual finding of contempt by the House or Senate at most leads to prosecution, conviction and a fine and/or imprisonment since it cannot be unilaterally purged by the accused through compliance after prosecution has begun, let alone after conviction.
At worst, as we have just witnessed, when the citation involves an official of the executive branch, it can lead to a stalemate if the president asserts executive privilege over the requested documents or testimony and instructs the Justice Department not to prosecute.
Holder is the first Cabinet secretary to be cited for contempt by either chamber (if one doesn’t count Cabinet-level Environmental Protection Agency Director Anne Gorsuch, cited by the House in 1982). Seven other Cabinet secretaries have been cited for contempt by a committee or subcommittee of Congress since 1975 but reached settlements to comply with the subpoenas before their cases came to a floor vote.
The most recent contempt votes prior to Holder involved two aides to President George W. Bush — White House counsel Harriet Miers and White House Chief of Staff Joshua Bolten. Both were cited for contempt of Congress by the House in February 2008 for refusing to testify on the firing of U.S. attorneys at the beginning of Bush’s second term. Bush asserted a presidential communications privilege over his aides and directed the Justice Department not to prosecute. In that case, then-Sen. Barack Obama, in a CNN interview, criticized the Bush administration for a tendency “to hide behind executive privilege every time there’s something a little shaky that’s taking place.”
When the House voted to cite Holder for contempt on June 28, it also adopted a resolution authorizing the House Oversight and Government Reform Committee to initiate civil proceedings in federal district court to force Holder to comply with the subpoena.
The House civil contempt alternative would, by necessity, first require the court to determine the legitimacy of the deliberative process privilege claim. While courts tend to duck such disputes as political questions, best left to the other branches to resolve, the deliberative process privilege claim, involving intra-agency pre-decisional materials, is on much shakier legal ground than the presidential communications privilege involving direct advice to the president.
The civil contempt route would likely take months if not years to wend its way through the courts. That is just as well because neither political party nor branch of government stands to benefit politically from the controversy in the heat of the current presidential campaign. If history is any guide (see Gorsuch), the administration, if it’s still around, will eventually reach an accord with the House rather than risk an adverse court decision on its questionable deliberative process privilege claim.
Don Wolfensberger is a senior scholar at the Woodrow Wilson Center, a resident scholar at the Bipartisan Policy Center, and former staff director of the House Rules Committee.