Feb. 8, 2016

Contempt Charges Are Not Partisan Fodder

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.

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