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.